EXECUTION VERSION

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BLACK HILLS POWER, INC.

TO

THE BANK OF NEW YORK MELLON

AS TRUSTEE

____________

Third Supplemental Indenture

Dated as of October 1, 2014

____________

FIRST MORTGAGE BONDS, 4.43% SERIES AG DUE OCTOBER 20, 2044

____________

Supplemental to Restated and Amended Indenture of Mortgage and Deed of Trust
Dated as of September 1, 1999

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THIRD SUPPLEMENTAL INDENTURE, dated as of October 1, 2014, between BLACK HILLS POWER, INC., a corporation organized and existing under the laws of the State of South Dakota (the “Company” ), having its principal office at 625 Ninth Street, Rapid City, South Dakota 57701, and THE BANK OF NEW YORK MELLON, a corporation organized and existing under the laws of the State of New York and authorized to accept and execute trusts (the “Trustee” ), having its principal corporate trust office at 101 Barclay Street, New York, New York 10286, as successor Trustee under the Restated Indenture (as described and defined below),

WHEREAS, in order to secure an authorized issue of First Mortgage Bonds of the Company, the Company has executed and delivered a Restated and Amended Indenture of Mortgage and Deed of Trust to JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan Bank), as Trustee (the successor of which is The Bank of New York Mellon), dated as of September 1, 1999 (the “Restated Indenture” ); and

WHEREAS, the terms of the Restated Indenture included the Company’s prior issuance of (a) a first series of Bonds designated “First Mortgage Bonds, 9.49% Series Y due 2018” (herein called the “Bonds of the Y Series” ), (b) the second series of Bonds designated “First Mortgage Bonds, 9.35% Series Z due 2021” (herein called the “Bonds of the Z Series” ), (c) a third series of Bonds designated “First Mortgage Bonds, 9.00% Series AA due 2003” (herein called the “Bonds of the AA Series” ), (d) a fourth series of Bonds designated “First Mortgage Bonds, 8.30% Series AB due 2024” (herein called the “Bonds of the AB Series” ), (e) a fifth series of Bonds designated “First Mortgage Bonds, 8.06% Series AC due 2010” (herein called the “Bonds of the AC Series” ) and (f) a sixth series of Bonds designated “First Mortgage Bonds, 6.50% Series AD due 2002” (herein called the “Bonds of the AD Series” ); and

WHEREAS, the Bonds of the Y Series in the aggregate principal amount of Five Million Four Hundred Twenty Thousand Dollars ($5,420,000) have heretofore been issued and secured by the Restated Indenture, of which none are outstanding at the date hereof; and

WHEREAS, the Bonds of the Z Series in the aggregate principal amount of Thirty Five Million Dollars ($35,000,000) have heretofore been issued and secured by the Restated Indenture, of which none are outstanding at the date hereof; and

WHEREAS, the Bonds of the AA Series in the aggregate principal amount of Four Million Two Hundred Fifty‑Four Thousand Nine Hundred Forty‑Six Dollars ($4,254,946) have heretofore been issued and secured by the Restated Indenture, of which none are outstanding at the date hereof; and

WHEREAS, the Bonds of the AB Series in the aggregate principal amount of Forty Five Million Dollars ($45,000,000) have heretofore been issued and secured by the Restated Indenture, of which none are outstanding at the date hereof; and

WHEREAS, the Bonds of the AC Series in the aggregate principal amount of Thirty Million Dollars ($30,000,000) have heretofore been issued and secured by the Restated Indenture, of which none are outstanding at the date hereof; and

WHEREAS, the Bonds of the AD Series in the aggregate principal amount of Fifteen Million Dollars ($15,000,000) have heretofore been issued and secured by the Restated Indenture, of which none are outstanding at the date hereof; and

WHEREAS, the Restated Indenture provides that the Company and the Trustee may enter into indentures supplemental to the Restated Indenture to convey, transfer and assign unto the Trustee and subject the lien of the Restated Indenture additional properties, rights and franchises acquired by the Company, to provide for the creation of any series of Bonds, and to add to the covenants and agreements of the Company contained in the Restated Indenture other covenants and agreements thereafter to be observed; and

WHEREAS, the Company has executed and delivered to JPMorgan Chase Bank, as Trustee, its First Supplemental Indenture, dated as of August 13, 2002 (hereinafter, sometimes called the “First Supplemental Indenture” ), for the purposes of creating a seventh series of Bonds designated “First Mortgage Bonds, 7.23% Series AE Due 2032” (the “Bonds of the AE Series” ), of adding to the covenants and agreements contained in the Restated Indenture and of conveying certain additional property acquired by the Company after the execution and delivery of the Restated Indenture; and

WHEREAS, Bonds of the AE Series in the aggregate principal amount of Seventy Five Million Dollars ($75,000,000) have heretofore been issued under and in accordance with the terms of the First Supplemental Indenture, of which $75,000,000 are outstanding at the date hereof; and

WHEREAS, the Company has executed and delivered to The Bank of New York Mellon, as Trustee, its Second Supplemental Indenture, dated as of October 27, 2009 (hereinafter, sometimes called the “Second Supplemental Indenture” ), for the purpose of creating an eighth series of Bonds designated "First Mortgage Bonds, 6.125% Series AF Due 2039” (the “Bonds of the AF Series” ), of adding to the covenants and agreements contained in the Restated Indenture and of conveying certain additional property acquired by the Company after the execution and delivery of the Restated Indenture; and

WHEREAS, the Bonds of the AF Series in the aggregate principal amount of One Hundred Eighty Million Dollars ($180,000,000) have heretofore been issued under and in accordance with the terms of the Second Supplemental Indenture, of which $180,000,000 are outstanding at the date hereof; and

WHEREAS, the Company has acquired, since the execution and delivery of the Second Supplemental Indenture to the Restated Indenture, the additional property hereinafter described, and the Company desires that such additional property so acquired be specifically subjected to the lien of the Indenture; and

WHEREAS, the Company, in the exercise of the powers and authority conferred upon and reserved to it under the provisions of the Restated Indenture and pursuant to appropriate resolution of its Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee a Third Supplemental Indenture in the form hereof for the purpose of

creating a new series of Bonds and pursuant to provisions of Articles Two and Sixteen of the Restated Indenture to add to its covenants, agreements and events of default contained in the Restated Indenture, certain other covenants, agreements and events of default to be observed by it and to alter and amend in certain respects, the covenants and provisions contained in the Restated Indenture; and

WHEREAS, all conditions and requirements necessary to make this Third Supplemental Indenture a valid, binding and legal instrument have been done, performed and fulfilled and the execution and delivery hereof have been in all respects duly authorized; and

WHEREAS, the Restated Indenture, as amended, modified and supplemented by the First Supplemental Indenture thereto, the Second Supplemental Indenture thereto and this Third Supplemental Indenture is hereinafter referred to as the “Indenture” ; and

WHEREAS, this Third Supplemental Indenture is to be filed in the real estate records of Laramie County, Wyoming, Weston County, Wyoming and Campbell County, Wyoming, as a mortgage, and as a financing statement under the Uniform Commercial Code in Wyoming, South Dakota and Montana as fixture filings covering goods which are or are to become fixtures on the real property described on Schedule I attached hereto and made a part hereof. A UCC‑1 financing statement will be filed with the Wyoming Secretary of State, the Montana Secretary of State and the South Dakota Secretary of State under each state’s Uniform Commercial Code and the Wyoming Transmitting Utility Act identifying the Company as the debtor and the Trustee as the secured party. The Company authorizes the Trustee to file any financing statements required to perfect the security interests granted herein;

NOW THEREFORE, in consideration of the premises and of one dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and of other good and valuable consideration, in order to establish the terms of the Bonds of the Series AG, the Company hereby further covenants and agrees to and with the Trustee and its successors in the trust under the Indenture for the benefit of all those who shall from time to time hold the Bonds of the Series AG as follows:

The Company does hereby ratify and confirm its mortgage and pledge to the Trustee of all property described in the Indenture and does hereby grant, bargain, sell, release, convey, assign, transfer, mortgage, pledge and set over unto the Trustee, and to its successors and assigns forever, the property described in Schedule I to this Third Supplemental Indenture acquired by the Company and not specifically described under the Indenture which property shall be incorporated into the terms of Exhibit A to the Indenture as if more fully set forth therein.

ARTICLE I
CREATION AND DESCRIPTION OF THE BONDS OF THE SERIES AG    

Section 1.1.     There shall be a new series of Bonds, known as and entitled “First Mortgage Bonds, 4.43% Series AG Due October 20, 2044” (referred to hereinafter as the “Bonds of the Series AG” ). The aggregate principal amount of the Bonds of the Series AG which may be authenticated and delivered under Article Four, Five or Six of the Indenture is limited to

Eighty‑Five Million Dollars ($85,000,000.00). The execution by the Company of any Bond of the Series AG in an authorized denomination shall be conclusive evidence of the authorization thereof. The Bonds of the Series AG shall mature on October 20, 2044 and shall bear interest (computed on the basis of a 360-day year consisting of twelve 30‑day months) at the rate of Four and Forty‑Three Hundredths percent (4.43%) per annum from October 1, 2014 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semi‑annually on April 20 and October 20 of each year, commencing April 20, 2015 (each, an “Interest Payment Date” ), until the principal thereof shall have become due and payable, and shall bear interest on overdue principal (including any optional prepayment of principal) and Make-Whole Amount (as hereinafter defined), if any, and (to the extent legally enforceable) on any overdue installment of interest at a rate per annum equal to the greater of Six and Forty‑Three Hundredths percent (6.43%) or two percent (2%) over the rate of interest publicly announced by The Bank of New York Mellon, from time to time in New York, New York as its “base” or “prime” rate until paid. Subject to Section 9.01 of the Indenture, payments of principal, premium, if any, and interest on the Bonds of the Series AG shall be made at the office or agency of the Company in The Borough of Manhattan, City of New York, which shall be the principal corporate trust office of the Trustee, in coin or currency of the United States of America which at the time of payment shall be legal tender for the payment of public and private debts. Interest payable on the Bonds of the Series AG on an Interest Payment Date shall be paid to the Persons in whose names such Bonds are registered at the close of business on the April 1 or October 1 (whether or not on a business day) next preceding the Interest Payment Date, except for defaulted interest and unmatured accrued interest on the Bonds of the Series AG called for redemption on a date other than an Interest Payment Date.

Each Bond of the Series AG shall be dated as of the date of its authentication. The Bonds of the Series AG shall be issued as fully registered Bonds, in denominations of $100,000 and multiples of $1,000 in excess thereof. Subject to the foregoing provisions of this Section 1.1 and to the provisions of Sections 2.07 and 2.11 of the Indenture, all definitive Bonds of the Series AG shall be transferable and exchangeable at the office of the Trustee stated above, upon payment of any stamp or other tax or governmental charge incidental thereto required to be paid with respect to such transfer or exchange. No service charge will be made for any exchange or transfer or any Bonds of the Series AG.

Section 1.2.     The Bonds of the Series AG and the Trustee’s certificate to be endorsed on the Bonds of such series shall be substantially in the following forms, respectively:

[FORM OF BOND]

THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND IN COMPLIANCE WITH THE APPLICABLE STATE REGISTRATION LAWS.

No. ______________    $[____________]

PPN 092114 A*8

BLACK HILLS POWER, INC.

FIRST MORTGAGE BOND, 4.43%
SERIES AG DUE OCTOBER 20, 2044

BLACK HILLS POWER, INC. (hereinafter called the “Company” ), a corporation organized and existing under the laws of the State of South Dakota, for value received, hereby promises to pay to [_______________], or registered assigns, on the 20th day of October, 2044, at the principal corporate trust office of the Trustee, in the Borough of Manhattan, The City of New York, [_____________________________] ($[__________]), in any coin or currency of the United States of America which at the time of payment shall be legal tender for the payment of public and private debts, and (a) to pay interest thereon from October 1, 2014 or from the most recent Interest Payment Date to which interest has been paid or duly provided for at the rate of Four and Forty‑Three Hundredths percent (4.43%), per annum (computed on the basis of a 360‑day year of 12 thirty‑day months), payable at said principal corporate trust office of the Trustee in like coin or currency semi‑annually on the twentieth day of April and October in each year (commencing on April 20, 2015) (each, an “Interest Payment Date” ) until the Company’s obligation with respect to such principal shall have become due and payable, and (b) to pay interest at said corporate trust office of the Trustee in like coin or currency on overdue principal (including any optional prepayment of principal) and Make‑Whole Amount (as defined in Section 2.3(d) of the Third Supplemental Indenture referred to below), if any, and (to the extent legally enforceable) on any overdue installment of interest at a rate per annum equal to the greater of Six and Forty‑Three Hundredths percent (6.43%) or two percent (2%) over the rate of interest publicly announced by The Bank of New York Mellon, from time to time, in New York, New York as its “base” or “prime” rate until paid. Subject to Section 9.01 of the Indenture, payments of principal, premium, if any, and interest are to be made at the office of the Trustee in The Borough of Manhattan, City of New York.

Any payment of principal of or Make‑Whole Amount or interest on this Bond that is due on a day other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of this Bond is a day other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day. For purposes of this paragraph, a “Business Day” is any day, other than a Saturday or Sunday, which is not a day on which commercial banks in New York, New York or Rapid City, South Dakota are required or authorized to be closed.

This Bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee, or its successor as Trustee, under the Indenture.

This Bond is one of an authorized issue of Bonds of the Company known as its “First Mortgage Bonds,” issued and to be issued in one or more series under, and all equally and ratably secured (except as any sinking, amortization, improvement, renewal or other analogous

fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the Bonds of any particular series) by a Restated and Amended Indenture of Mortgage and Deed of Trust, dated as of September 1, 1999, executed by the Company to JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan Bank), as Trustee (the successor to which is The Bank of New York Mellon), as supplemented and amended by a First Supplemental Indenture, dated as of August 13, 2002 and as supplemented and amended by a Second Supplemental Indenture, dated as of October 27, 2009 and as further supplemented and amended by a Third Supplemental Indenture, dated as of October 1, 2014 (said Restated Indenture as so supplemented and amended being hereinafter collectively called the “Indenture” ), to which Indenture and all further instruments supplemental thereto reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of the holders of said Bonds and the coupons appurtenant to coupon Bonds, if any, and of the Trustee and of the Company in respect of such security, and the terms and conditions upon which said Bonds are and are to be issued and secured.

To the extent permitted by the Indenture and as provided therein, with the consent of the Company and upon the written consent or affirmative vote of at least sixty‑six and two‑thirds percent in principal amount of the Bonds then outstanding and entitled to consent, and of not less than sixty‑six and two‑third percent, in principal amount of the Bonds then outstanding and entitled to consent of each series affected thereby in case one or more but less than all of the series of Bonds issued under the Indenture are so affected, the rights and obligations of the Company and of the holders of Bonds and coupons appurtenant to coupon Bonds, if any, and the terms and provisions of the Indenture and of any instrument supplemental thereto may be modified from time to time, provided that no such modification or alteration shall be made which would postpone the date fixed herein or in the Indenture for the payment of the principal of, or any installment of interest on, the Bonds, or reduce the principal of, or the rate of interest payable on, the Bonds, or reduce the percentage of the principal amount of Bonds the consent of which is required for the authorization of any such modification or alteration, without the consent of all of the holders affected thereby. The rights, duties or immunities of the Trustee shall not be modified without the written consent of the Trustee.

As provided in the Indenture, said Bonds are issuable in series which may vary as in the Indenture provided or permitted. This Bond is one of a series of Bonds authorized by the Third Supplemental Indenture and entitled “First Mortgage Bonds, 4.43% Series AG Due October 20, 2044” (the “Bonds of the Series AG” ).

As provided in the Indenture, the Bonds of the Series AG are subject to redemption prior to maturity at the option of the Company either as a whole at any time or in part, from time to time, and in certain other cases, at the principal amount of the Bonds so to be redeemed and accrued interest to the date fixed for redemption, together with a premium equal to the Make-Whole Amount, if any (as defined in Section 2.3(d) of the Third Supplemental Indenture). Except as specifically set forth in the Indenture, the Bonds of the Series AG are not subject to optional redemption.

Pursuant to the provisions of Section 8.05 of the Indenture, the Company may request the Trustee to apply moneys deposited with the Trustee ( “Trust Moneys” ) for various reasons

toward the redemption of those Bonds, including payment of premium, if applicable, and accrued interest, selected by the Company, provided that there shall be no premium payable in connection with a redemption under Section 8.08 of the Indenture.

Pursuant to the provisions of Section 8.08 of the Indenture, the Bonds of the Series AG are further subject to redemption, in whole or in part, by the Trustee applying certain Trust Moneys which have been held by the Trustee for a period of over two years. Any such redemption is made pro rata among the series of Bonds then outstanding in the ratio of principal amount. Pursuant to the terms of the Third Supplemental Indenture, any redemption under Section 8.08 of the Indenture (and no other Section) shall be at 100 percent of principal (with no premium), plus accrued interest to the redemption date.

Notice of each redemption of the Bonds of the Series AG shall be mailed to all registered owners of the Bonds of the Series AG not less than ten nor more than sixty days before the redemption date.

If this Bond or any portion thereof ($1,000 or a multiple) shall be duly called for redemption as provided in the Indenture, this Bond or such portion thereof shall (unless the Company shall default in the payment of the redemption price) cease to bear interest from and after the date fixed for redemption.

Upon any partial redemption of this Bond, this Bond may, at the option of the registered holder hereof, be either (a) surrendered to the Trustee in exchange for one or more new Bonds of the Series AG for the principal amount of the unredeemed portion of this Bond or (b) submitted to the Trustee for notation hereon by the Trustee of the payment of the portion of the principal hereof so called for redemption.

If an Event of Default, as defined in the Indenture, shall occur and be continuing, the principal of all the Bonds outstanding may become or be declared due and payable, in the manner and with the effect provided in the Indenture. In the event the payment of the Bonds of the Series AG is accelerated pursuant to the Indenture, the aggregate principal amount hereof and interest hereon shall be due and payable together with the Make‑Whole Amount, if any.

The Bonds of the Series AG are issuable as fully registered Bonds without coupons of the denominations of $100,000 and any multiple of $1,000 which may be executed by the Company and delivered to the Trustee for authentication and delivery. The Bonds of the Series AG, upon surrender thereof to the Trustee at its principal corporate trust office in the Borough of Manhattan, The City of New York, are exchangeable for other Bonds of the same series in such authorized denomination or denominations in the same aggregate principal amount, as may be requested by the holders surrendering the same.

The Company and the Trustee may deem and treat the person in whose name this Bond is registered as the absolute owner hereof, for the purpose of receiving payment of or on account of the principal hereof and interest due hereon, and neither the Company nor the Trustee shall be affected by any notice to the contrary. Interest payable hereon on an Interest Payment Date shall be paid to the Person in whose name this Bond is registered at the close of business on the

April 1 or October 1 (whether or not on a business day) next preceding the Interest Payment Date, except for defaulted interest and unmatured accrued interest on the Bonds of the Series AG called for redemption on a date other than an interest payment date.

No recourse shall be had for the payment of the principal of or the interest on this Bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture or of any indenture supplemental thereto, against any incorporator, stockholder, director or officer, as such, past, present or future, of the Company or of any predecessor or successor corporation, either directly or through the Company or any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or by any legal or equitable proceeding or otherwise howsoever; all such liability being, by the acceptance hereof and as a part of the consideration for the issuance hereof, expressly waived and released by every holder hereof, as more fully provided in the Indenture; provided, however, that nothing herein or in the Indenture contained shall be taken to prevent recourse to and the enforcement of the liability, if any, of any shareholder or any stockholder or subscriber to capital stock upon or in respect of shares of capital stock not fully paid up.

IN WITNESS WHEREOF, the Company has caused this Bond to be signed in its name by its President or one of its Vice Presidents, and its corporate seal to be impressed or imprinted hereon and attested by its Secretary or one of its Assistant Secretaries.

Dated:

(TRUSTEE’S CERTIFICATE OF AUTHENTICATION)

This is one of the Bonds, of the series designated therein, described in the within mentioned Indenture.

    

    

Section 1.3     Upon the execution and delivery of this Third Supplemental Indenture and upon delivery to the Trustee of Eighty‑Five Million and 00/100 Dollars ($85,000,000) principal amount of the Bonds of the Series AG executed by the Company, and upon compliance with all applicable provisions and requirements of the Indenture in respect thereof, including, but not limited to, the Property Additions Certificate of the Company delivered in connection with the issuance of the Bonds of the Series AG, the Trustee shall authenticate said Bonds of the Series AG and deliver them to or upon the Written Order or Orders of the Company, without awaiting the recordation or filing for recordation of this Third Supplemental Indenture.

Section 1.4.     Notwithstanding anything to the contrary in this Third Supplemental Indenture, payments on the Bonds of the Series AG shall be made in accordance with Section 9 of the Bond Purchase Agreement (as defined in Section 3.3(a) of this Third Supplemental Indenture) and the Trustee shall be entitled to conclusively assume that any holder of such Bonds is entitled to the benefits of said Section 9 unless notified by the Company to the contrary. Without limiting the other indemnities provided to the Trustee, the Company shall indemnify and save the Trustee harmless from any liabilities and costs incurred by the Trustee arising out of the making of the final or any partial payment when due of the principal owing on any of the Bonds of the Series AG without surrender of such Bond to the Trustee.

Section 1.5.     The Trustee is hereby appointed Registrar in respect to the Bonds of the Series AG, and the principal corporate trust office of the Trustee in the Borough of Manhattan, The City of New York, is hereby designated as the office or agency of the Company in said Borough where notices and demands in respect of the Bonds of the Series AG may be served.

Section 1.6.     At the option of the registered owner, any Bonds of the Series AG, upon surrender thereof for cancellation at the office of the Trustee in the Borough of Manhattan and 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 2.07 of the Indenture, be exchangeable for a like aggregate principal amount of Bonds of the same series of other authorized denominations.

Bonds of the Series AG shall be transferable, subject to the provisions of Article Two of the Indenture and compliance with the restriction on transfer set forth in the legend on the Bonds of the Series AG, at the office of the Trustee in the Borough of Manhattan and City of New York, New York. The Company shall not be required to make transfers or exchanges of Bonds of the Series AG for a period of twenty (20) days next preceding any designation of Bonds of said series to be prepaid, and the Company shall not be required to make transfers or exchanges of any Bonds of said series designated in whole or in part for prepayment.

The Trustee shall not register the transfer of any Bond of the Series AG unless it receives a certificate in the form attached hereto as Appendix A.

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under applicable law or under this Third Supplemental Indenture with respect to any transfer of any interest in a Bond of the Series AG

other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Third Supplemental Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

Upon any exchange or transfer of Bonds of the Series AG, the Company may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge, as provided in Article Two of the Indenture, but the Company hereby waives any right to make a charge in addition thereto for any exchange or transfer of Bonds of the Series AG.

After the delivery of this Third Supplemental Indenture and upon compliance with the applicable provisions of the Indenture and receipt of consideration therefor by the Company, there shall be an initial issue of Bonds of the Series AG for the aggregate principal amount of $85,000,000.

ARTICLE II
REDEMPTION OF THE BONDS OF THE SERIES AG    

Section 2.1.     The entire unpaid principal balance of the Bonds of the Series AG shall be due and payable on the stated maturity date thereof.

Section 2.2 .    Pursuant to the Indenture, the Bonds of the Series AG are subject to redemption, in whole or in part, out of certain monies required to be deposited with the Trustee, but in such cases the redemption shall be effected at the principal amount of the Bonds of the Series AG to be redeemed and accrued interest to the date fixed for redemption, without premium, if redeemed pursuant to Section 8.08 of the Indenture.

Section 2.3.     (a) The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Bonds of the Series AG at 100% of the principal amount so prepaid, and the Make‑Whole Amount determined for the Settlement Date specified by the Company in such notice with respect to such principal amount. The Company, or the Trustee (at the Company’s written request in the name and at the expense of the Company, which request shall be given to the Trustee at least five Business Days (or such shorter period as shall be acceptable to the Trustee) prior to the latest date that notice of such prepayment must be delivered to the registered owners of the Bonds of the Series AG), will give each registered owner of Bonds of the Series AG written notice (by first class mail or such other method (acceptable to the Trustee) as may be agreed upon by the Company and such registered owner) of each optional prepayment under this Section 2.3(a) not less than 10 days and not more than 60 days prior to the date fixed for such prepayment, to each such registered owner at its last address appearing on the registry books. Each such notice shall specify the Settlement Date (which shall be a Business Day), the aggregate principal amount of the Bonds of the Series AG to be prepaid on such date, the principal amount of each Bond held by such registered owner to be prepaid (determined in accordance with subsection (b) of this Section 2.3), and the interest to be paid on the Settlement Date with respect to such principal amount being prepaid, and shall be accompanied by a certificate signed by a Senior Financial Officer as to the estimated Make‑Whole Amount due in connection with such prepayment (calculated as if the date of such

notice were the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such Settlement Date, the Company, or the Trustee (at the Company’s written request in the name and at the expense of the Company), shall send to each registered owner of Bonds of the Series AG (by first class mail or by such other method (acceptable to the Trustee) as may be agreed upon by the Company and such registered owner) a certificate signed by a Senior Financial Officer specifying the calculation of such Make‑Whole Amount as of the specified Settlement Date. As promptly as practicable after the giving of the notice and the sending of the certificates provided in this subsection, the Company shall provide a copy of each to the Trustee (unless the Company has elected in writing to have the Trustee deliver such notices and certificates, in which case the Company shall not be required to provide further copies). The Trustee shall be under no duty to inquire into, may conclusively presume the correctness of, and shall be fully protected in relying upon the information set forth in any such notice or certificate. The Bonds of the Series AG are not otherwise subject to voluntary or optional prepayment.

(b)    In the case of each partial prepayment of the Bonds of the Series AG, the principal amount of the Bonds of the Series AG to be prepaid shall be allocated by the Company among all of the Bonds of the Series AG at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment; provided that the remaining principal amount of each Bond shall be an authorized denomination.

(c)    In the case of each notice of prepayment of Bonds of the Series AG pursuant to this Section 2.3, if cash sufficient to pay the principal amount to be prepaid on the Settlement Date (which shall be a Business Day), together with interest on such principal amount accrued to such date and the applicable Make‑Whole Amount, if any, is not paid as agreed upon by the Company and each registered owner of the affected Bonds, or, to the extent that there is no such agreement entered into with one or more such owners, deposited with the Trustee on or before the Settlement Date, then such notice of prepayment shall be of no effect. If such cash is so paid or deposited, such principal amount of the Bonds of the Series AG shall be deemed paid for all purposes and interest on such principal amount shall cease to accrue. In case the Company pays any registered owner pursuant to an agreement with that registered owner, the Company shall notify the Trustee as promptly as practicable of such agreement and payment, and shall furnish the Trustee with a copy of such agreement; in case the Company deposits any cash with the Trustee, the Company shall provide therewith a list of the registered owners and the amount of such cash each registered owner is to receive. The Trustee shall be under no duty to inquire into, may conclusively presume the correctness of, and shall be fully protected in relying upon the information set forth in any such notice, list or agreement, and shall not be chargeable with knowledge of any of the contents of any such agreement. Any Bond prepaid in full shall be surrendered to the Company or the Trustee for cancellation (and shall not be reissued) in accordance with Section 9 of the Bond Purchase Agreement referred to in Section 3.3 of this Third Supplemental Indenture.

(d)     “Make‑Whole Amount” means, with respect to any Bonds of the Series AG, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Bonds of the Series AG over the amount of such Called Principal, provided that the Make‑Whole Amount may in no event be less than zero.

For the purposes of determining the Make‑Whole Amount, the following terms have the following meanings:

“Business Day” means any day other than a Saturday, a Sunday or a day on which commercial banks in New York City are required or authorized to be closed.

“Called Principal” means, with respect to any Bonds of the Series AG, the principal of such bond that is to be prepaid pursuant to subsection (a) of this Section 2.3 or has become or is declared to be immediately due and payable pursuant to Article Eleven of the Indenture, as the context requires.

“Discounted Value” means, with respect to the Called Principal of any Bonds of the Series AG, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Bonds of the Series AG is payable) equal to the Reinvestment Yield with respect to such Called Principal.

“Reinvestment Yield” means, with respect to the Called Principal of any Bonds of the Series AG, 0.50% over the yield to maturity implied by (i) the yields reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded U.S. Treasury securities having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date, or (ii) if such yields are not reported as of such time or the yields reported as of such time are not ascertainable (including by way of interpolation), the Treasury Constant Maturity Series Yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (519) (or any comparable successor publication) for actively traded U.S. Treasury securities having a constant maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. Such implied yield will be determined, if necessary, by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between (1) the actively traded U.S. Treasury security with the maturity closest to and greater than such Remaining Average Life and (2) the actively traded U.S. Treasury security with the maturity closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Bonds of the Series AG.

“Remaining Average Life” means, with respect to any Called Principal, the number of years (calculated to the nearest one‑twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to the nearest one‑twelfth year) that will elapse

between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.

“Remaining Scheduled Payments” means, with respect to the Called Principal of any Bonds of the Series AG, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Bonds of the Series AG, then (for the purpose of this calculation) the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date.

“Senior Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of the Company.

“Settlement Date” means, with respect to the Called Principal of any Bonds of the Series AG, the date on which the principal of such Bonds is to be prepaid pursuant to subsection (a) of this Section 2.3 or is declared to be immediately due and payable pursuant to Article Eleven of the Indenture, as the context requires.

The words “prepay”, “prepaid” and “prepayment”, as used in this Section 2.3, shall mean “redeem”, “redeemed” and “redemption”, as those terms are used in the Indenture, the term “Settlement Date”, as used in this Section 2.3, shall mean “redemption date”, “date of redemption” and any similar term, as those terms are used in the Indenture and the prepayment price provided for in this Section 2.3 shall mean “redemption price” for purposes of the Indenture. Any prepayment under this Section 2.3 shall be made in accordance with Article Ten of the Indenture except to the extent Section 2.3 shall provide otherwise.

Section 2.4.     The Company will not and will not permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Bonds of the Series AG except upon the payment or prepayment of the Bonds of the Series AG in accordance with the terms of this Third Supplemental Indenture and the Bonds of the Series AG. The Company will promptly cancel all Bonds of the Series AG acquired by it or any Affiliate pursuant to any payment or prepayment of Bonds pursuant to any provision of this Third Supplemental Indenture and no Bonds of the Series AG may be issued in substitution or exchange for any such Bonds.

Section 2.5 .        All monies paid to the Trustee pursuant to Sections 2.2 and 2.3 of this Article II shall be held by the Trustee in trust for the benefit of the respective registered owners of the Bonds of the Series AG which are to be redeemed (in whole or in part) and shall be paid to them as provided in Article Ten of the Indenture.

Section 2.6 .        Nothing contained in the Indenture or in any Bond shall be construed to imply any obligation upon the Trustee to make any payment, except out of monies deposited with it for such purpose by the Company.

ARTICLE III
CERTAIN COVENANTS     

Section 3.1 .     The Company hereby covenants that, so long as any of the Bonds of the Series AG shall remain outstanding, the covenants and agreements of the Company set forth in Section 8.08 of the Indenture shall be and remain in full force and effect, and be observed and complied with by the Company, with the effect and result that if the Company is required to redeem Bonds pursuant to said Section 8.08, it shall comply with the requirements of Section 2.2 of this Third Supplemental Indenture.

Section 3.2.     So long as any Bonds of the Series AG are outstanding, the Company will not and will not permit any Controlled Entity (as such term is defined in the Bond Purchase Agreement as defined in Section 3.3(a)) (a) to become (including by virtue of being owned or controlled by a Blocked Person (as such term is defined in the Bond Purchase Agreement)), own or control a Blocked Person or any Person that is the target of sanctions imposed by the United Nations or by the European Union, or (b) directly or indirectly to have any investment in or engage in any dealing or transaction (including, without limitation, any investment, dealing or transaction involving the proceeds of the Bonds of the Series AG) with any Person if such investment, dealing or transaction (i) would cause any purchaser or holder of the Bonds of the Series AG to be in violation of any law or regulation applicable to such purchaser or holder, or (ii) is prohibited by or subject to sanctions under any U.S. Economic Sanctions (as such term is defined in the Bond Purchase Agreement), or (c) to engage, nor shall any Affiliate of either engage, in any activity that could subject such Person or any Purchaser or holder to sanctions under CISADA (as such term is defined in the Bond Purchase Agreement) or any similar law or regulation with respect to Iran or any other country that is subject to U.S. Economic Sanctions (as such term is defined in the Bond Purchase Agreement).

Section 3.3.     (a) So long as any Bonds of the Series AG are outstanding, unless waived by the registered owners of at least a majority in principal amount of the Bonds of the Series AG then outstanding, the Company shall perform or comply with all terms, provisions and conditions of the Bond Purchase Agreement dated as of June 30, 2014 (the “Bond Purchase Agreement” ) pursuant to which the Bonds of the Series AG were issued.

(b)    So long as the Company is in compliance with Section 7.1 of the Bond Purchase Agreement, the covenant contained in the second clause of Section 9.15(1) of the Indenture shall not apply to the Bonds of the Series AG and the Company shall not be required, pursuant to Section 9.15(1) of the Indenture, to file information, documents or reports pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act” ), with the Trustee or the Securities and Exchange Commission except to the extent the Company shall otherwise be required to make such filings with the Securities and Exchange Commission pursuant to Section 13 of the Exchange Act or pursuant to the terms of any other Bonds outstanding under the Indenture.

ARTICLE IV
                     MISCELLANEOUS    

Section 4.1 .    The Company is lawfully seized and possessed of all the real estate, franchises and other property described or referred to in the Indenture as presently mortgaged; subject to the exceptions stated therein, such real estate, franchises and other property are free and clear of any lien prior to the lien of the Indenture, except as set forth in the granting clauses of the Indenture; and the Company has good right and lawful authority to mortgage the same as provided in and by the Indenture.

Section 4.2.     The Trustee assumes no duties, responsibilities or liabilities by reason of this Third Supplemental Indenture other than as set forth in the Indenture, and this Third Supplemental Indenture is executed and accepted by the Trustee subject to all the terms and conditions of its acceptance of the trust under the Indenture, as fully as if said terms and conditions were herein set forth at length.

Section 4.3.     As amended and modified by the First Supplemental Indenture, the Second Supplemental Indenture and this Third Supplemental Indenture, the Indenture is in all respects ratified and confirmed and the Indenture and the First, Second and Third Supplemental Indentures shall be read, taken and construed as one and the same instrument.

Section 4.4.     Subject to the amendments provided for in this Third Supplemental Indenture, the terms defined in the Indenture, shall for all purposes of this Third Supplemental Indenture, have the meanings specified in the Indenture.

Section 4.5.     Whenever in this Third Supplemental Indenture any party hereto is named or referred to, this shall, subject to the provisions of Articles Thirteen and Fourteen pursuant of the Indenture, as heretofore supplemented, be deemed to include the successors or assigns of such party, and all the covenants and agreements in this Third Supplemental Indenture contained by or on behalf of the Company, or by or on behalf of the Trustee 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 4.6.     This Third Supplemental Indenture may be executed in several counterparts, all or any of which may be treated for all purposes as one original and shall constitute and be one and the same instrument.

Section 4.7.     The aggregate principal amount of Bonds which, immediately after the authentication and delivery of the Bonds of the Series AG to be issued under this Third Supplemental Indenture, will be outstanding under the provisions of, and secured by, the Indenture, as amended by this Third Supplemental Indenture, will be $340,000,000, consisting of $75,000,000 aggregate principal amount of the Bonds of the AE Series and of $180,000,000 aggregate principal amount of the Bonds of the AF Series hereinbefore set forth in the eleventh and thirteenth recitals of this Third Supplemental Indenture and $85,000,000 aggregate principal amount of Bonds of the Series AG hereby created.

Section 4.8.     The Trustee makes no representation as to the validity or sufficiency of this Third Supplemental Indenture.

Section 4.9.     This Third Supplemental Indenture and each Bond of the Series AG shall be governed by and construed in accordance with the laws of the State of South Dakota without regard to the choice of law principles thereof. Notwithstanding the foregoing, the immunities and standard of care of the Trustee, Registrar and paying agent in connection with the administration of trusts and duties hereunder shall be governed by and construed in accordance with the laws of the State of New York.

IN WITNESS WHEREOF, BLACK HILLS POWER, INC., has caused this Third Supplemental Indenture to be signed in its corporate name by its Vice President and Treasurer and its corporate seal to be hereunto affixed and attested by its Corporate Secretary and THE BANK OF NEW YORK MELLON, in evidence of its acceptance of the trust hereby created, has caused this Third Supplemental Indenture to be signed in its corporate name by one of its Authorized Officers and its corporate seal to be hereunto affixed and attested by one of its Authorized Officers, all as of the day and year first above written.

BLACK HILLS POWER, INC.

(SEAL)

Attest:

    

On this 22 ^nd day of September, 2014, before me appeared Brian G. Iverson, to me personally known, who, being by me duly sworn did say that he is the Vice President and Treasurer of Black Hills Power, Inc. and that the seal affixed to said instrument is the corporate seal of said corporation and that said instrument was signed and sealed on behalf of said corporation by authority of its Board of Directors, and said Brian G. Iverson acknowledged said instrument to be the free act and deed of said corporation.

    

(SEAL)

STATE OF NEW YORK     )

)ss.:

CITY AND COUNTY OF NEW YORK    )

On this 19 ^th day of September, 2014, before me appeared Laurence J. O’Brien, to me personally known, who, being by me duly sworn did say that he/she is an Authorized Officer of The Bank of New York Mellon, and that the seal affixed to said instrument is the corporate seal of said corporation and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors, and said Laurence J. O’Brien acknowledged said instrument to be the free act and deed of said corporation.

    

    

SCHEDULE I TO THIRD

SUPPLEMENTAL INDENTURE

LEGAL DESCRIPTIONS OF REAL PROPERTY

APPENDIX A

ASSIGNMENT CERTIFICATE

In connection with the undersigned’s assignment and transfer to the assignee identified below of that certain First Mortgage Bond, 4.43% Series AG Due October 20, 2044 issued by the Company to the undersigned dated ________________:

Assignee’s social security or tax I.D. number: ___________________________

Assignee’s name: _____________________________

Assignee’s address and zip code: ___________________________

___________________________

___________________________

the undersigned hereby certifies that such First Mortgage Bond, 4.43% Series AG Due October 20, 2044 is being transferred as specified below:

CHECK ONE

(1) ☐    to the Company or a subsidiary thereof;

(2) ☐    pursuant to an effective registration statement under the Securities Act of 1933; or

(3) ☐    pursuant to an exemption from the registration requirements of the Securities Act of 1933.

Unless one of items (1) through (3) above is checked, the Trustee or Registrar will refuse to register the above-referenced First Mortgage Bond, 4.43% Series AG Due October 20, 2044 in the name of any person other than the registered holder thereof; provided, however, that if item (3) is checked, the Company may reasonably require, prior to the registration of any such transfer of the First Mortgage Bond, 4.43% Series AG Due October 20, 2044, additional information to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

If none of the foregoing items are checked, the Trustee or Registrar shall not be obligated to register the First Mortgage Bond, 4.43% Series AG Due October 20, 2044 in the name of any person other than the holder thereof unless and until the conditions to any such transfer of registration set forth therein and in the Third Supplemental Indenture shall have been satisfied.

Signed: ___________________________________

Name of Holder:____________________________

Name of Signatory:__________________________

Title of Signatory:___________________________

Dated:___________________

CHEYENNE LIGHT, FUEL AND POWER COMPANY

TO

WELLS FARGO BANK, NATIONAL ASSOCIATION

As TRUSTEE

____________

RESTATED INDENTURE OF MORTGAGE, DEED OF TRUST,

SECURITY AGREEMENT AND FINANCING STATEMENT

______________

AMENDED AND RESTATED

AS OF

NOVEMBER 20, 2007

THIS INDENTURE SHALL ALSO CONSTITUTE A FINANCING STATEMENT UNDER THE WYOMING UNIFORM COMMERCIAL CODE (the "UCC") TO BE FILED IN THE REAL ESTATE RECORDS, AND IS FILED AS A FIXTURE FILING UNDER THE UCC COVERING GOODS WHICH ARE, OR ARE TO BECOME, FIXTURES ON THE REAL PROPERTY DESCRIBED HEREIN.

RESTATED INDENTURE OF MORTGAGE, DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT , dated as of November 20, 2007, between CHEYENNE LIGHT, FUEL AND POWER COMPANY, a corporation organized and existing under the laws of the State of Wyoming (hereinafter called the " Company ") having its principal office at No. 108 West 18th Street, Cheyenne, Wyoming, party of the first part, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America and authorized to accept and execute trusts (hereinafter called the " Trustee "), having its principal office at 1740 Broadway, Denver, Colorado, party of the second part.

RECITALS

In order to secure an authorized issue of First Mortgage Bonds of the Company, the Company has executed and delivered an Indenture of Mortgage and Deed of Trust to The United States National Bank of Denver as Trustee, dated March 1, 1948, hereinafter referred to as the "Original Indenture."

Wells Fargo Bank, National Association, is the successor Trustee as the result of consolidation of The United States National Bank of Denver followed by a series of subsequent name changes and mergers leading to the Trustee as the current successor.

Subsequent to the execution of the Original Indenture, the Company has executed nine various supplemental indentures providing for the issuance of additional series of Bonds and supplementing and modifying the Original Indenture, which, as supplemented and amended by said nine supplemental indentures, is referred to herein as the "Restated Indenture".

Pursuant to the provisions of the Original Indenture, First Mortgage Bonds have been duly issued and are presently outstanding and secured by the Original Indenture, and continue to be secured by this Restated Indenture as follows:

                                    

Because of the extensive amendments contained in the first eight supplemental indentures and the complexities in reading and interpreting the Original Indenture resulting therefrom, the Company issued the Ninth Supplemental Indenture which further amended the Original Indenture and which caused the Original Indenture to be amended and restated to constitute one instrument which completely states the agreement of the parties hereto as of the date hereof.

The Company, in the exercise of the powers and authority conferred upon and reserved to it under and by virtue of the provisions of the Indenture (as hereinafter defined), and pursuant to

resolutions of its Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee this Restated Indenture in the form hereof for the purpose of restating the Original Indenture without any interruption of the lien of the Original Indenture which now continues under the Restated Indenture.

WHEREAS, the Company has the corporate power and authority to borrow money from time to time for its corporate purposes and to issue therefor its bonds and other obligations, and to secure the prompt payment thereof by mortgage and/or pledge of its franchise rights, privileges and properties hereinafter described; and, for its corporate purposes, the Company has determined to make and issue its bonds to be known as its First Mortgage Bonds (herein called the " Bonds "), as hereinafter provided; and

WHEREAS, the Bonds are to be issued in fully registered form without coupons (hereinafter called " registered Bonds "), and may be in such denominations as shall be determined prior to the issuance thereof; and

WHEREAS, the Bonds are to be in one or more series, each series to be dated as of such date or dates, to bear such rate of interest, to mature at such time or times, to bear such designation, and to contain such other specifications and provisions as are hereinafter in this Restated Indenture provided or permitted; and

WHEREAS, the Company under and pursuant to the power and authority aforesaid has determined to secure the prompt payment of the principal of and interest and premium, if any, on all the Bonds by executing and delivering to the Trustee an Indenture of Mortgage, Deed of Trust, Security Agreement and Financing Statement in the terms of this Restated Indenture, mortgaging and pledging the hereinafter described property; and

WHEREAS, the execution of this Restated Indenture has been duly authorized and all other things necessary to constitute this Restated Indenture a valid mortgage, deed of trust, security agreement and financing statement to secure the payment of the principal of and interest and premium, if any, on all Bonds to be issued hereunder have been done and performed, and the creation, execution and delivery of this Restated Indenture, and the creation, execution and issue of the Bonds to be initially issued hereunder, have in all respects been duly authorized; and

WHEREAS, the registered Bonds and the Trustee's certificate to be endorsed thereon, of whatever series, are to be substantially in the following form, subject always to Section 3.06 :

[General Form of Bond]

CHEYENNE LIGHT, FUEL AND POWER COMPANY

FIRST MORTGAGE BOND, SERIES _________

Due _____________________

FOR VALUE RECEIVED, CHEYENNE LIGHT, FUEL AND POWER COMPANY, a corporation organized and existing under the laws of the State of Wyoming (hereinafter called the “Company”, which term shall include any successor corporation as defined in the Restated Indenture hereinafter referred to), hereby promises to pay to _____________________________ or registered assigns, on the ____ day of ________________, __________, the sum of _________________________________ Dollars ($______) in coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts, and to pay to the registered holder hereof interest thereon from the date hereof, at the rate of ________ per cent (___%) per annum, in like coin or currency, payable __________ on the _________ day of ___________ and the ________ day of _____________in each year until the principal hereof shall have become due and payable, and thereafter if default be made in the payment of such principal, at the rate of _____ percent (__%) per annum until the principal hereof shall be paid. Payments of both principal and interest are to be made at the office or agency specified in the supplement to the Restated Indenture creating this Bond.

This Bond is one of an authorized issue of Bonds of the Company known as its First Mortgage Bonds, all issued and to be issued in one or more series under and equally and ratably secured (except as any sinking, amortization, improvement, renewal or other analogous fund, established in accordance with the provisions of the Restated Indenture hereinafter mentioned, may afford additional security for the Bonds of any particular series) by a Restated Indenture of Mortgage, Deed of Trust, Security Agreement and Financing Statement (hereinafter called the “Restated Indenture”) executed by the Company to WELLS FARGO BANK, NATIONAL ASSOCIATION (herein called the “Trustee”), as Trustee, dated November 20, 2007, to which Restated Indenture and to all indentures supplemental thereto reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the terms and conditions upon which the Bonds are and are to be secured and the rights of the holders or registered owners thereof and of the Trustee in respect of such security. As provided in the Restated Indenture, said Bonds may be issued in series, for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Restated Indenture provided or permitted. This ______________ Bond is one of the Bonds described in the Restated Indenture and designated therein as “First Mortgage Bonds, _________________________” (the “_______________ Bonds”).

To the extent permitted by and as provided in the Restated Indenture, the rights and obligations of the Company and of the holders of said Bonds may be changed and modified with the consent of the Company and upon the written consent of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the Bonds then outstanding and entitled to consent, and, in case one or more but less than all of the series of Bonds issued under the Restated Indenture are so affected, of at least sixty-six and two-thirds percent (66 2/3%) in principal amount of the Bonds then outstanding and entitled to consent of each series affected thereby (unless a different percentage is set forth in the supplemental indenture pursuant to which such affected Bonds were created), provided that no such change shall be made which would (i) reduce the principal of, or the rate of interest payable on, the Bonds, or (ii) postpone the maturity date fixed in the Restated Indenture or in the Bonds for the payment of the principal of, or any installment of interest on, the Bonds, or (iii) reduce the percentage of the principal amount of Bonds the consent of the holders of which is required for the authorization of any such change or addition, or (iv) modify, without the written consent of the Trustee, the rights, duties or immunities of the Trustee, and further provided that,

without the consent of the holder hereof, no such change shall be made which would (i) permit the creation of any lien ranking prior to or on a parity with the lien of the Restated Indenture on any of the mortgaged property, or (ii) deprive the holder hereof of the lien of the Restated Indenture upon the mortgaged property.

(Here insert reference to redemption if Bonds of a particular series are redeemable and to sinking or other fund if such Bonds are entitled thereto.)

In case an event of default as defined in the Restated Indenture shall occur and be continuing, the principal of all the Bonds outstanding may be declared and may become due and payable in the manner and with the effect provided in the Restated Indenture.

This Bond is a registered Bond and is transferable by the registered owner hereof in person or by the duly authorized attorney of such holder on the registration books to be kept for the purpose at the principal office of the Trustee, Registrar for the Bonds, in the City and County of Denver, Colorado, upon surrender of this Bond accompanied by a written instrument of transfer in form approved by the Company, duly executed by the registered holder in person or by such attorney, and upon cancellation hereof one or more new registered Bonds, of authorized denominations, for the same aggregate principal amount, will be issued to the transferee in exchange herefor, as provided in the Restated Indenture.

The Company and the Trustee may deem and treat the person in whose name this Bond is registered on such books as the absolute owner hereof (whether or not this Bond shall be overdue) for the purpose of receiving payment hereof, and on account hereof and for all other purposes, and neither the Company nor the Trustee shall be affected by any notice to the contrary.

(Here insert provisions for exchangeability, if any.)

No recourse shall be had for the payment of the principal of or interest on this Bond, or in respect of this Bond or the Restated Indenture, against any incorporator, stockholder, officer, or director, as such, past, present or future, of the Company or of any predecessor or successor corporation, either directly or through the Company, by virtue of any constitution, statute or rule of law or by enforcement of any assessment or penalty or otherwise, any and all such liability of incorporators, stockholders, officers and directors being released by the holder hereof by the acceptance of this Bond and being likewise waived and released by the terms of the Restated Indenture.

This Bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall be signed by the Trustee under the Restated Indenture.

IN WITNESS WHEREOF, CHEYENNE LIGHT, FUEL AND POWER COMPANY has caused these presents to be signed in its name by its President or a Vice President and its corporate seal to be affixed hereto and attested by its Secretary or an Assistant Secretary.

Dated,

        

                

(TRUSTEE’S CERTIFICATE TO BE ENDORSED ON ALL BONDS)

This Bond is one of the Bonds, of the series designated herein, described in the within-mentioned Restated Indenture.

WELLS FARGO BANK, NATIONAL ASSOCIATION,

As Trustee,

                        

AND WHEREAS, all Bonds which may be issued under this Restated Indenture are to be in substantially the same form as the General Form of Bond, subject to such variations, additions, omissions and substitutions as shall be established by or pursuant to a Resolution or in one or more supplemental indentures pursuant to which any such Bonds shall be outstanding as provided for or permitted by the terms of this Restated Indenture;

NOW, THEREFORE, THIS RESTATED INDENTURE WITNESSETH:

That to secure the payment of the principal of and interest and premium, if any, on such Bonds as may at any time be issued and outstanding under this Restated Indenture, according to their tenor and effect, and the due performance of the covenants, agreements and provisions herein and in the Bonds contained, and to declare the terms and conditions upon which Bonds are to be issued, the Company, party of the first part, in consideration of the premises and of the purchase and acceptance of said Bonds by the holders thereof, and of the sum of One Dollar lawful money of the United States of America to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has executed and delivered these presents and has granted, bargained, sold, warranted, aliened, remised, released, conveyed, confirmed, assigned, transferred, mortgaged, pledged and set over (and has created a security interest), and by these presents does grant, bargain, sell, warrant, alien, remise, release, convey, confirm, assign, transfer, mortgage, pledge and set over (and does create a security interest), unto the Trustee, party of the second part, and to its successors in the trust hereby created and assigns forever, all of the property, real, personal and mixed, now owned by the Company, situated in the

COUNTY OF LARAMIE, in the STATE OF WYOMING, or elsewhere (other than property expressly excepted from the lien hereof) and also all of the property, real, personal and mixed, hereafter acquired by the Company wherever situate (except the property hereinafter, expressly excepted from the lien hereof), including both as to property now owned and property hereafter acquired (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 Restated Indenture):

I

REAL PROPERTY

All of the real property described on Schedule I, together with the buildings and improvements thereon erected. In addition, this Restated Indenture is to be filed in the real estate records of Campbell and Laramie Counties, Wyoming as a financing statement under the Wyoming Uniform Commercial Code (the "UCC") as a fixture filing covering goods which are, or are to become fixtures on the real property described on Schedule I. For purposes of the UCC, the Company is the debtor and the Trustee is the secured party. The Company authorizes the Trustee to file any financing statements required to perfect the security interests granted herein.

II

FRANCHISES

All and singular, the franchises, grants, permits, immunities, privileges and rights of the Company (except the franchise to be a corporation) owned and held by it at the date of the execution hereof or hereafter acquired for the construction, maintenance, and operation of the electric and gas plants and systems now or hereafter subject to the lien hereof, as well as all certificates, franchises, grants, permits, immunities, privileges and rights of the Company used or useful in the operation of the property now or hereafter mortgaged hereunder, including all and singular the franchises, grants, permits, immunities, privileges, and rights of the Company granted by the governing authorities of any cities and towns, or other municipalities or political subdivisions, and all renewals, extensions and modifications of said certificates, franchises, grants, permits, privileges, and rights of any of them, including the following:

III

DISTRIBUTION AND TRANSMISSION SYSTEMS

IV

OTHER PROPERTY

All other property, whether real, personal or mixed (except any hereinbefore or hereinafter expressly excepted), and whether now owned or hereafter acquired by the Company 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 Restated

Indenture) all lands, power sites, flowage rights, water rights, rights to the use of water, including all the right, title and interest of the Company in and to any and all decrees therefor, flumes, ditches, reservoirs, reservoir sites, canals, raceways, dams, dam sites, dam rights of way and roads; all plants for the generation of electricity by steam, water and/or other power; all power houses, gas plants, telephone systems, water works, water systems, steam heat plants, hot water plants, substations, gathering lines, transmission lines, distributing systems, bridges, culverts, tracks; all offices, buildings and structures, and the equipment thereof; all machinery, engines, boilers, dynamos, machines, regulators, meters, transformers, generators and motors; all conduits, cables and lines; all pipes whether for water, steam heat, gas or other purposes; all mains and pipes, service pipes, fittings, valves and connections, poles, wires, tools, implements, apparatus, furniture, and chattels; all lines for the transmission and/or distribution of electric current, gas, steam heat or water for any purpose, including towers, poles, wires, cables, pipes, conduits, street lighting systems and all apparatus for use in connection therewith; all real estate, lands, leases, leaseholds; all easements, servitudes, licenses, permits, rights, powers, franchises (except the franchise to be a corporation), privileges, rights of way and other rights in or relating to real estate or the occupancy of the same and (except as hereinbefore or hereinafter 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 described.

V

TENEMENTS, HEREDITAMENTS AND APPURTENANCES

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, rents, issues, income and profits thereof, and all the estate, rights, title, interest and claim whatsoever, at law or in equity, which the Company now has or which it may hereafter acquire in and to the aforesaid property and every part and parcel thereof.

VI

EXCEPTED PROPERTY

Provided, however, that in addition to the reservations and exceptions contained elsewhere in this Restated Indenture, the following are not and are not intended to be now or hereafter granted, bargained, sold, warranted, conveyed, assigned, transferred, mortgaged or confirmed hereunder and are hereby expressly excepted from the lien and operation of this Restated Indenture, herein sometimes referred to as “Excepted Property”:

    

A.     all cash on hand, in banks or in other financial institutions with which the Company maintains deposits, shares of stock, bonds, notes, evidences of indebtedness and other securities not hereafter paid or delivered to, deposited with, or held by, the Trustee hereunder or required so to be;

B.     all contracts, operating agreements, contract rights, bills, notes and other instruments, accounts receivable, claims, credits, demands, judgments, choses in action, patents, patent licenses and other patent rights, patent applications, trade names, trademarks

and other general intangibles (except any that are expressly subjected or required to be subjected to the lien hereof);

C.     all motor vehicles, automobiles, buses, trucks, truck cranes, tractors, trailers and similar vehicles, movable equipment, all rolling stock, railcars, containers and other railroad equipment, all vessels, boats, barges and other marine equipment, all airplanes, airplane engines and flight equipment, and all components, spare parts, accessories, supplies and fuel used or to be used in connection with any of the foregoing;

D.     all goods, wares, merchandise, equipment, spare parts and tools held for sale or lease in the ordinary course of business or for use or consumption in, or in the operation of any properties of, or for the benefit of, the Company, or held in advance of use thereof for maintenance, replacement or fixed capital purposes; all fuel, materials and supplies and other personal property which are consumable (otherwise than by ordinary wear and tear) in their use in the business of the Company;

E.     all crops, timber, sand, gravel, rocks, earth, natural gas, coal, ore, uranium, gas, oil and other minerals harvested, mined or extracted or otherwise separated from the land, or lying or being upon, within or under any properties of the Company, including the Trust Estate, all mineral rights, leases and royalties and income therefrom, and all rights to explore for minerals, and gas or oil wells or any lease or real estate acquired for the purpose of obtaining gas or oil rights;

F.     all electric energy, steam, water, ice and other products generated, manufactured, produced, provided or purchased by the Company for sale, transmission or distribution or used or to be used by the Company;

G.     leases in which the Company is lessor and leases permitted hereby hereafter made of portions of the mortgaged property in which the Company is lessor;

H.     the Company’s franchise to be a corporation; and

I.    all books and records;

it being understood that the Company may, however, subject to the lien of this Restated Indenture any Excepted Property, whereupon the same shall cease to be Excepted Property; provided, however, that if an Event of Default shall happen and be continuing and if thereafter the Trustee or a receiver or trustee shall enter upon and take possession of the mortgaged property, the Trustee or such receiver or trustee may, to the extent not prohibited by law, take possession of any and all of the Excepted Property then on hand and use and administer and consume the same to continue the operations of the mortgaged property in all respects as if such Excepted Property were part of the mortgaged property, accounting therefor, if required by law, to such person, if any, as may be lawfully entitled to such an accounting.

TO HAVE AND TO HOLD the property and franchises hereby conveyed and assigned, or intended so to be, unto the Trustee and its successors in the trust forever;

Subject, however, as to property hereby conveyed, to Permitted Encumbrances, as hereinafter defined, and, as to any property hereafter acquired by the Company, to any lien thereon existing, and to any liens for unpaid portions of the purchase price placed thereon, at the time of such acquisition, but in each case only to the extent not prohibited by the provisions of this Restated Indenture;

BUT IN TRUST NEVERTHELESS, under and subject to the terms and conditions hereinafter set forth, for the equal pro rata benefit and security of each and every person who may be or become the holders of the Bonds hereby secured, without preference, priority or distinction as to lien or otherwise of one Bond over or from the others by reason of priority in the issue or negotiations thereof, or by reason of the date of maturity thereof, or otherwise (except as any sinking, amortization, improvement, renewal or other analogous fund, established in accordance with the provisions hereof, may afford additional security for the Bonds of any particular series and except as provided in Section 11.01 ), and for securing the observance and performance of, all the terms, provisions and conditions of this Restated Indenture.

THIS RESTATED INDENTURE FURTHER WITNESSETH, that the Company has agreed and covenanted, and hereby does agree and covenant with the Trustee and its successors and assigns and with the respective holders from time to time of the Bonds, or any thereof, as follows:

ARTICLE I

DEFINITIONS AND CONSTRUCTIONS

SECTION 1.01. Definitions . The following definitions shall, unless otherwise clearly indicated by the context, apply for all purposes of this Restated Indenture, whether or not such term is capitalized when used herein:

(a)    " Additions Credit " shall mean an Additions Credit established as follows:

    

If and whenever any Net Amount of Property Additions are certified or made a part of an application to the Trustee for any purpose under this Restated Indenture, any amount is in excess of that required for such purpose, the excess amount shall constitute an Additions Credit and may be carried forward and used as Property Additions for additional certifications and applications under this Restated Indenture. The Company shall have the right, at any time and from time to time, to establish Additions Credit by delivering to the Trustee the Certificates, Opinions and other Instruments which would be required to be delivered to the Trustee under Sections 5.01 B, clauses (1) through (11) and (13) and Section 5.01 C .

(b)    " Affiliate " shall mean a person which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company or any other person who is liable on the Bonds.

(c)    " Application of the Company ", " Written Order of the Company ", " Written Request of the Company ", " Request of the Company ", " Written Consent of the Company ", " Certificate of the Company " and " Statement of the Company " shall mean, respectively, an application, order, request, consent, certificate or statement signed by the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company.

(d)    " Authorized Publication ” means a newspaper or financial journal of general circulation, printed in the English language and customarily published on each day, other than Saturdays, Sundays or holidays; or, in the alternative, shall mean such form of communication as may have come into general use for the dissemination of information of import similar to that of the information specified to be published by the provisions hereof. In the event that successive weekly publications in an Authorized Publication are required hereunder they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or in different Authorized Publications. In case, by any reason of the suspension of publication of any Authorized Publication, or by reason of any other cause, it shall be impractical without unreasonable expense to make publication of any notice in an Authorized Publication as required by this Restated Indenture, then such method of publication or notification as shall be made with the approval of the Trustee shall be deemed the equivalent of the required publication of such notice in an Authorized Publication.

(e)    " Bond " shall mean one of the bonds issued hereunder, including the Existing Bonds.

(f)    " Bond Register " shall have the meaning set forth in Section 3.07 hereof.

(g)    " Bondholder ," " holder " or " holder of Bonds " or any similar terms shall mean a person in whose name a Bond is registered in the Bond Register. Any reference to the holders of a particular percentage or proportion of the Bonds, or to the holders of a particular percentage or proportion of the Bonds of a particular series, shall mean the holders at the time in question of the specified percentage or proportion in aggregate principal amount of all the Bonds then outstanding under this Restated Indenture, or of all the Bonds of such particular series then outstanding under this Restated Indenture, as the case may be, excluding Bonds owned by or for the account or benefit of the Company or an Affiliate of the Company; provided that for the purpose of determining whether the Trustee shall be protected in relying on any direction, consent or waiver by the holders of Bonds, only Bonds which the Trustee knows are so owned shall be excluded.

(h)    " Company " shall mean the party of the first part hereto, CHEYENNE LIGHT, FUEL AND POWER COMPANY, and shall also include its successors and assigns, provided that no successor or assign which shall become such otherwise than in accordance with the provisions of Article XIII shall be entitled to procure the authentication and delivery of Bonds hereunder.

(i)    " Control " shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an individual, firm, corporation or other legal entity, whether through the ownership of voting securities, by contract or otherwise.

(j)    " Cost basis ", when used with reference to Retirements, shall mean, as to any property acquired subsequent to August 31, 2006, the cost thereof, and as to any property acquired prior to September 1, 2006, the amount at which the same was carried on the books of the Company on August 31, 2006, without deducting therefrom applicable reserves for depreciation and/or for retirements as of that date.

(k)    " Counsel " shall mean a person or firm of persons engaged in the independent practice of law, acceptable to the Trustee, who may but need not be a person or persons regularly retained by the Company or by an Affiliate.

(l)    " Depositary " means, with respect to Bonds of any series issuable in whole or in part in the form of one or more Global Bonds, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Bonds as contemplated by Section 3.06 .

(m)    " Electric Business " shall have the meaning set forth in the definition of " Property Additions " set forth in this Section 1.01 .

(n)    " Electric Properties " shall have the meaning set forth in the definition of " Property Additions " set forth in this Section 1.01 .

(o)    " Engineer " shall mean an individual, a copartnership or a corporation engaged in the engineering profession, who shall be selected by the Company and approved by the Trustee in the exercise of reasonable care (unless specifically required to be selected by the Trustee, in which

case the Trustee shall make such selection in the exercise of reasonable care), and who may be but need not be an officer or employee of the Company or of an Affiliate, unless specifically required to be an Independent Engineer.

(p)    " Exchange Act " means the Securities Exchange Act of 1934, as heretofore amended, and as may be amended from time to time.

(q)    " Exclusive Benefit Covenant " means any covenant, agreement or condition that is expressly stated to be solely for the protection or benefit of the registered owners of the Bonds of one or more but less than all series of Bonds.

(r)    " Existing Bonds " are those Bonds Outstanding at the execution of the Restated Indenture and are described in Article II .

(s)    " Fair Value " shall have the meaning set forth in Section 10.02 .

(t)    " Funded Property " shall mean

(i)    All property owned by the Company on August 31, 2006, other than Excepted Property.

(ii)    All Property Additions which shall have been included in a Property Additions Certificate of the Company in respect of the authentication and delivery of additional Bonds under the Indenture and this Restated Indenture or the establishment of an Additions Credit under the Indenture and this Restated Indenture.

(iii)    All Property Additions which shall have been included in a Property Additions Certificate of the Company in respect of the withdrawal of any Funded Cash held by the Trustee hereunder.

(iv)    All Property Additions which have been included in any Certificate of the Company delivered to Trustee to compute the amount of Property Additions being used to meet the requirements of any sinking fund, amortization, improvement, renewal or other analogous fund, if any, which may hereafter be created permitting the satisfaction thereof by the use of Property Additions.

(v)    All Property Additions to the extent that the same shall have been substituted for Funded Property in the exercise by the Company of any right which it may have to apply the proceeds of insurance (or of property sold or otherwise disposed of in accordance with the provisions of Section 10.01 ) to the acquisition of such substituted property without depositing such proceeds with the Trustee.

(vi)    All property constituting repairs of Funded Property.

(vii)    All property constituting renewals or replacements of Funded Property to the extent that the cost thereof under sound accounting practice should properly be reflected as a current operating expense.

If any Funded Property owned by the Company shall be released from the lien hereof as herein provided, the property so released shall cease to be Funded Property, but may at any time thereafter again become Funded Property through the operation of any of Subdivisions (ii) , (iii) , (iv) , (v) , (vi) and (vii) above

(u)    " Funded Cash " shall mean:

(i)    Cash (held by the Trustee hereunder or by the trustee or other holder of any mortgage or other lien constituting a prior lien) to the extent that it represents the proceeds of the release of Funded Property or the proceeds of insurance of or the taking by eminent domain of Funded Property, or the proceeds of Funded Property purchased by any governmental body or agency upon exercise of any right which it may have to purchase the same.

(ii)    Any cash deposited with the Trustee under Section 7.02 .

(iii)    Any cash deposited with the Trustee to meet the requirements of any sinking fund, amortization, improvement, renewal or other analogous fund, if any, which may hereafter be created.

(v)    " Gas Business " shall have the meaning set forth in the definition of " Property Additions " set forth in this Section 1.01 .

(w)    " Gas Properties " shall have the meaning set forth in the definition of " Property Additions " set forth in this Section 1.01 .

(x)    " Global Bond " means a Bond that evidences all or part of the Bonds of any series and bears the legend set forth in Section 3.11 (or such legend as may be specified as contemplated by Section 3.06 for such Bonds).

(y)    " Gross Amount of Property Additions " shall have the meaning set forth in the definition of " Net Amount of Property Additions " set forth in this Section 1.01 .

(z)    " Indenture " is the Original Indenture as supplemented and amended by nine supplemental indentures thereto. The Indenture is restated by this Restated Indenture. Reference to the Indenture in the supplemental indentures for the Existing Bonds attached as Exhibits A, B, C and D are deemed to refer to this Restated Indenture.

(aa)    " Independent ," when applied to any Engineer or other person signing any other certificate or report, shall mean such a person who (1) is in fact independent, (2) does not have any substantial interest, direct or indirect, in the Company or in any Affiliate of the Company and (3) is

not connected with the Company or any Affiliate of the Company, as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.

(bb)    " Institutional Investor " shall mean any bank, trust company, savings and loan association, any pension plan, any investment company, any insurance company, any broker or dealer or any other similar financial institution or entity, regardless of legal form.

(cc)    " Issued, " when used with reference to Bonds hereunder, shall mean when such Bonds have been duly authenticated by the Trustee and delivered to or upon the order of the Company pursuant to any of the provisions of this Restated Indenture.

(dd)    " Lien hereof " and " Lien of this Restated Indenture " shall mean the lien created by these presents (including the lien created by the granting clauses hereof on properties hereafter acquired) and the lien created by any subsequent conveyance or delivery to the Trustees (by whomever made) effectively constituting any property a part of the security held by the Trustee upon the terms and trusts and subject to the conditions specified in this Restated Indenture.

(ee)    " Mortgaged premises ", " Mortgaged Property " and " Trust Estate " shall mean as of any particular time the property which at said time is subject to the lien of this Restated Indenture.

(ff)    " Net Amount of Property Additions ", when used with reference to Property Additions included in any particular Property Additions Certificate of the Company, shall mean the amount obtained by deducting from the cost or fair value (whichever is less) of all such Property Additions (herein called the " Gross Amount of Property Additions ") an amount equal to the cost basis of all Retirements not theretofore reflected in a Certificate filed with the Trustee pursuant to Paragraph B of Section 5.01 or Subdivision (1) of Section 10.08 , after deducting therefrom Retirement Credits, if any, to the extent that the same have not previously been used as a Retirements Credit.

(gg)    " Net Earnings " of the Company for any period shall be determined by deducting from the amount of its gross revenues for such period, all operating expenses and other proper deductions from income for such period, including (without in any respect limiting the generality of the foregoing) interest on all outstanding indebtedness, amortization of debt discount and expense, amortization of all other deferred items properly subject to amortization, provisions for all taxes, including income taxes, provisions for all contingency reserves, whether general or special, provisions for depletion, if any, and provisions for depreciation and obsolescence in amounts not less than those actually deducted on the books of the Company, provided, however , that

(i)    Profits realized or losses sustained from the sale or other disposition of capital assets shall be excluded.

(ii)    Net Earnings shall not reflect any write-down or write-off (either by one direct charge or by amortization over a period) of the excess of cost of properties to the Company or its predecessors over the original cost of such properties when first devoted to public use or any write-up of any deficiency of such cost over the original cost thereof.

(iii)    The net amount of income from the sale or installation, in connection with the Electric Business or the Gas Business of the Company, of electric appliances or gas consuming appliances and accessory equipment may be included.

(hh)    “ Net Earnings Available for Interest” for any period shall be determined by adding to the Net Earnings of the Company for such period (but only to the extent that the same were deducted in computing such Net Earnings) (i) all interest charges for such period, (ii) all amortization of debt discount and expense for such period, and (iii) all income taxes, excess profits taxes or other like taxes imposed on, or measured by, income determined after deduction of interest charged for such period, and by deducting from such Net Earnings of the Company for such period the amount, if any, by which net non-operating revenues of the Company for such period exceeds ten percent (10%) of the gross operating revenues of the Company for such period.

If at the time of any such computation any property of the Company is subject to any lien or other encumbrance (other than Permitted Encumbrances) prior to the lien hereof, securing indebtedness in excess of One Hundred Thousand Dollars ($100,000), the net earnings of such property, estimated if necessary, shall be excluded in making the foregoing computation of Net Earnings Available for Interest.

In case the Company shall have acquired any property which is subject to the lien of this Indenture within or after the period for which Net Earnings Available for Interest is calculated, the Company, in computing the same, shall be entitled to include the net earnings of such property for the whole of such period, to the extent that the same may not have been otherwise included and might have been included if such property had been owned by the Company during the whole of such period. The net earnings of any property so acquired for the period preceding such acquisition shall be ascertained and computed as if such property had been owned by the Company during such period.

If any Retirements having an aggregate cost basis in excess of One Hundred Thousand Dollars ($100,000), the earnings of which can be separately determined under the bookkeeping practice of the Company, shall have occurred within or after the period for which the calculation of net earnings is made and before the authentication and delivery of the Bonds in respect to which the Net Earnings Available for Interest have been computed, the Net Earnings Available for Interest for such period shall exclude the net earnings, estimated if necessary, of such Retirements.

(ii)    " Outstanding, " when used as of any particular time with reference to Bonds, shall mean all the Bonds which theretofore shall have been issued under the Indenture and this Restated Indenture, except:

(i)    Bonds theretofore cancelled or surrendered to the Trustee for cancellation;

(ii)    Bonds for the payment or redemption of which money in the necessary amount shall have been deposited with the Trustee, whether upon or prior to the maturity or the redemption date of such Bonds, provided that if such Bonds are to be redeemed prior

to the maturity thereof, notice of such redemption shall have been given, as provided herein, or provision satisfactory to the Trustee shall have been made therefor;

(iii)    Bonds in lieu of and in substitution for which other Bonds shall have been authenticated and delivered pursuant to the terms of Section 3.10 ; and

(iv)    Bonds deposited with or held by the Trustee under any of the provisions of this Restated Indenture, including any so held under any Sinking or other similar Fund.

(jj)    " Permitted Encumbrances " shall mean any of the following:

(i)    The lien of this Restated Indenture.

(ii)    Liens and encumbrances junior to the lien of this Restated Indenture.

(iii)    Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges and liens for workmen's compensation awards and similar obligations not then due and delinquent;

(iv)    Liens for specific taxes, governmental charges or assessments already due (or liens incidental to construction or operation for indebtedness already due) but the validity of which is being contested at the time by the Company in good faith pursuant to the provisions of Section 8.04 ;

(v)    Undetermined liens and charges incidental to current construction or current operation, which have not at the time been filed pursuant to law against the Company or, if so filed, have not yet become due and payable;

(vi)    Any liens, neither assumed by the Company nor on account of which it customarily pays interest, existing upon real estate or rights in or relating to real estate acquired by the Company for substation, measuring station, regulating station, transmission line, gas transportation line, distribution line or right-of-way purposes;

(vii)    Easements or reservations in any property of the Company created for the purpose of roads, railroads, railroad side tracks, pipe lines, gas transportation lines, transmission lines and other like businesses, water power rights of the State or others, building and use restrictions and defects of title to, or leases of, minor parts of the mortgaged property or other reservations which do not in the opinion of counsel materially impair the use of the mortgaged property as an entirety in the operation of the business of the Company;

(viii)    Any obligations or duties affecting the property of the Company to any municipality or public authority with respect to any franchise, grant, license or permit;

(ix)    Defects in titles to rights-of-way for electric, gas or steam transmission and distribution lines over public or private property, provided that the aggregate length of such

rights-of-way for such lines over private property as to which defects exist shall not exceed five (5) miles;

(x)    Rights reserved to or vested in any municipality or public authority by the terms of any right, power, franchise, grant, license or permit, or by any provisions of law, to terminate such right, power, franchise, grant, license or permit or to purchase or recapture or to designate a purchaser of, or to use, control or regulate any of the property of the Company;

(xi)    Rights granted or created or burdens assumed by the Company, or limitation of rights arising from agreements entered into, under the provisions of Subdivision (6) of Section 10.01 ;

(xii)    Mortgages or other liens securing obligations pledged with the Trustee hereunder and securing no other obligations.

In determining, for the purpose of any opinion to be delivered hereunder, whether any of the encumbrances referred to in Subdivision (vii) above impair the use of the property subject thereto in the operation of the business of the Company, the counsel giving such opinion may rely on a certificate of an Engineer.

(kk)    " Person " shall mean an individual, a corporation, a partnership, a trust or unincorporated organization, a joint stock company or other similar organization, a government (including, without limitation, the United States of America) or political subdivision thereof, or any other legal entity.

(ll)    " Property Additions " shall mean real estate owned in fee, easements and rights-of-way in respect of real estate, plants, tanks, buildings, mains, structures, machinery, meters, equipment and other physical properties, real or personal, situated in the State of Wyoming, useful to the Company in the business (herein called the " Gas Business ") of generating, storing, transmitting and/or distributing gas as a public utility (such properties being hereinafter sometimes called " Gas Properties ") or in the business (hereinafter called the " Electric Business ") of generating, transmitting, distributing and/or selling electricity (such properties being hereinafter sometimes called " Electric Properties "); provided that such properties shall have been acquired by the Company after August 31, 2006 by purchase, consolidation, merger or in any other way, or made or constructed by the Company after said date. The term "Property Additions" as so defined, without limitation of the foregoing, shall include

(i)    Improvements, extensions, additions or betterments to or about the properties of the Company, in the process of construction or erection in so far as actually constructed or erected by the Company subsequent to August 31, 2006, or in so far as machinery and equipment for installation as a part of, or building materials to be used in the construction or erection of, such improvements, extensions or betterments, are actually delivered at the site of construction subsequent to August 31, 2006; and

(ii)    Property purchased, constructed or otherwise acquired by the Company to renew, replace or in substitution for old, worn out, retired, discontinued or abandoned property.

The term "Property Additions" shall not include

(iii)    any Excepted Property, or

(iv)    any property acquired or constructed by the Company the cost of which may not under sound accounting practice properly be capitalized, or

(v)    any property subject to a lien or encumbrance other than Permitted Encumbrances.

(mm)    " Resolution " shall mean a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company.

(nn)    " Responsible officer or officers " of the Trustee shall mean the chairman and vice-chairman of the board of directors and the executive committee, the president, any vice-president, any trust officer, any assistant vice-president, the secretary, the treasurer, the cashier, and every officer and assistant officer of the Trustee customarily performing functions similar to those performed by the foregoing individuals or to whom any corporate trust matter is referred because of his knowledge of, and familiarity with, a particular subject.

(oo)    " Restated Indenture " is this Restated Indenture of Mortgage, Deed of Trust, Security Agreement and Financing Statement which is a restatement of the Indenture. The Restated Indenture is not a new indenture; and when such term is used herein, it refers to the Indenture as restated by this Restated Indenture.

(pp)    " Retirements " shall mean:

(i)    All Funded Property which shall have been released from the lien hereof,

(ii)    All Funded Property which shall have been worn out, retired or abandoned or which has otherwise permanently ceased to be used or useful in the Electric Business or the Gas Business of the Company, and

(iii)    All Funded Property which has been destroyed, provided, however , that in the computation of Retirements there shall be disregarded all amounts charged to, included in, or credited to, plant acquisition adjustment accounts or plant adjustment accounts or any accounts for similar purposes.

(qq)    " Retirements Credits " shall mean the following credits, which may be applied against Retirements:

(i)    The amount of cash and/or other consideration received by the Trustee in connection with the release of any Funded Property,

(ii)    The amount of (i) insurance monies paid to the Trustee pursuant to the provisions of Section 8.07 on account of the destruction of any Funded Property, and (ii) the excess of the Gross Amount of Property Additions certified to the Trustee pursuant to the provisions of Clause (c) of Paragraph B of said Section 8.07 over the amount of insurance moneys paid to the Trustee pursuant to the provisions of said Section 8.07 , and

(iii)    The excess credit, if any, carried forward from a previous certificate delivered by the Company pursuant to Paragraph B of Section 5.01 ,

but in each case only to the extent that the same have not previously been used as a Retirements Credit.

(rr)    " Subsidiary " of the Company shall mean any corporation more than fifty percent (50%) of the issued and outstanding stock of which having ordinary voting power (other than stock which has acquired such power only by reason of the happening of a contingency) shall at the time be owned or controlled, directly or through any intervening medium, by the Company.

(ss)    " Trust Indenture Act " shall mean the Trust Indenture Act of 1939, as heretofore amended and as may be amended from time to time.

(tt)    " Trustee " shall mean WELLS FARGO BANK, NATIONAL ASSOCIATION, the party of the second part, or its successor for the time being in the trust hereunder.

SECTION 1.02. Certain Phrase . Whenever the Company is required to state in any Property Additions Certificate of the Company or other Certificate of the Company delivered hereunder that Property Additions or Bonds have not theretofore " been used by the Company for any purpose of this Restated Indenture " such phrase shall mean:

(a)    when used with reference to Property Additions, that the Property Additions in question have not, in any other previous or then pending application, become Funded Property or been made the basis for the withdrawal of any cash (whether or not Funded Cash) from the Trustee or from the trustee or other holder of a prior lien or for any credit in lieu of cash under any provision of this Restated Indenture and that no part of said Property Additions includes any property acquired or constructed to replace property (whether or not Funded Property) disposed of pursuant to Paragraph (2) of Section 10.01 or to repair, replace or restore insured property (whether or not Funded Property) the proceeds of the insurance on which shall not have been required to be paid to the Trustee pursuant to the provisions of Section 8.07 ;

(b)    when used with reference to Additions Credits, that the Additions Credits in question have not in any other previous or then pending application been made the basis for the authentication and delivery of Bonds or the withdrawal of any cash (whether or not Funded Cash) from the Trustee or for any credit in lieu of cash under any provisions of this Restated Indenture; and

(c)    when used with reference to Bonds, that the Bonds in question have not, in any other previous or then pending application been made the basis for the withdrawal of any cash (whether or not Funded Cash) from the Trustee or from a trustee or other holder of a prior lien and have not been redeemed or paid through the application of cash (whether or not Funded Cash) by the Trustee or the trustee or other holder of a prior lien, and that such Bonds have not been retired through the operations of any provisions for an amortization, improvement, renewal, sinking, or other analogous fund contained in any indenture supplemental hereto, and have not been cancelled upon the issuance of other Bonds in exchange or substitution therefor, and have not been made the basis of any application pursuant to Article VI .

The fact that property has theretofore become subject to the lien of this Restated Indenture, or is required so to be, shall not be deemed to mean that the same has "theretofore been used by the Company for any purpose of this Restated Indenture" within the meaning of this Section 1.02 .

SECTION 1.03. Determinations of Earnings . Subject to the provisions of Sections 1.01(gg) and (hh) , all determinations of earnings pursuant to this Restated Indenture shall be made and all financial statements to be delivered hereunder shall be prepared in accordance with the practice lawfully prescribed by any regulatory authority having jurisdiction over the Company or other lawfully prescribed practice and, in the absence of any practice so prescribed, in accordance with sound accounting practice.

SECTION 1.04. Applications, Certificates and/or Reports . Wherever in this Restated Indenture, in connection with any application or certificate or report to the Trustee hereunder, it is provided that the Company shall deliver certificates, opinions, reports and/or other documents as a condition of the granting of such application, or as evidence of compliance with any condition or covenants herein contained, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such documents shall in each and every such case be conditions precedent to the right of the Company to have such application granted or to the effectiveness of such certificate or report. Nevertheless, upon any such application, certificate or report, the documents required by any of the provisions of this Restated Indenture to be delivered to the Trustee as a condition of the granting of such application, or as evidence of such compliance, may, subject to the provisions of Section 14.01 , be received by the Trustee as conclusive evidence of any statement therein contained, and shall be full warrant, authority and protection to the Trustee acting on the faith thereof. Before granting any such application, or accepting such evidence of compliance, the Trustee in its discretion may make such independent inquiry or investigation as to it may seem proper into the truth and accuracy of the matters evidenced by any such document. If the Trustee shall determine to make such further inquiry, it shall be entitled to examine the books, records and premises of the Company, either itself or by agent or attorney, and unless satisfied, with or without such examination, of the truth and accuracy of the matters stated in such documents, it shall be under no obligation to grant

the application or to accept such evidence of compliance. The reasonable expenses of such examination or other inquiry shall be paid by the Company, or if paid by the Trustee shall be repaid by the Company, upon demand.

SECTION 1.05. General References . References by number in this Restated Indenture to any Article or Section shall be construed as referring to the Articles and Sections contained in this Restated Indenture, unless otherwise stated. The words " hereby ," " herein ," " hereof ," " hereto ," and " hereunder '' and any compounds thereof shall be construed as referring to this Restated Indenture generally, and not merely to the particular Article, Section or subdivision in which they occur, unless otherwise required by the context.

SECTION 1.06. Separate Certificates, Opinions and Other Documents . Whenever in this Restated Indenture provision is made for the delivery to the Trustee of any certificate, opinion or other document signed by an officer or officers of the Company or by any other person, such provision may be complied with by delivery of more than one certificate or opinion or other document, each covering a particular part of the matter or matters required to be included in the certificate or opinion or other document so provided for, and in such event such separate certificates, opinions or other documents need not all be signed by the same officers or persons, provided that such separate certificates, opinions or other documents shall, taken together, contain all of the statements herein provided for and be signed by an officer or officers or person or persons, as the case may be, by whom the certificate, opinion or other document so provided for is authorized or required to be signed.

ARTICLE II

EXISTING BONDS

SECTION 2.01. Bonds of the 2024 Series . First Mortgage Bonds, 7.50%, due January 1, 2024 (the " Bonds of the 2024 Series "), have been duly issued and are presently outstanding and secured by this Restated Indenture in the principal amount of $7,200,000.

A.    Attached to this Restated Indenture as Exhibit A is a copy of the Fifth Supplemental Indenture setting forth the interest rate and other terms and conditions of the Bonds of the 2024 Series.

B.    References in Exhibit A to the section of the Original Indenture identified in the table below as the "Original Section" shall now refer to the section of the Restated Indenture set forth in the table below as the "Restated Section", except that references in Exhibit A to Article IX of the Original Indenture shall be deemed to refer to Article IX of the Original Indenture.

SECTION 2.02. Series 1997A Bonds . First Mortgage Bonds, Adjustable Rate Industrial Development Revenue Bonds Series 1997A, due March 1, 2027 (the " Series 1997A Bonds "), have been duly issued and are presently outstanding and secured by this Restated Indenture in the principal amount of $10,000,000.

A.    Attached to this Restated Indenture as Exhibit B is a copy of the Sixth Supplemental Indenture setting forth the interest rate and other terms and conditions of the Series 1997A Bonds.

B.    References in Exhibit B to the section of the Original Indenture identified in the table below as the "Original Section" shall now refer to the section of the Restated Indenture set forth in the table below as the "Restated Section."

SECTION 2.03. Series 1997B Bonds . First Mortgage Bonds, Adjustable Rate Industrial Development Revenue Refunding Bonds Series 1997B, due September 1, 2021 (the " Series 1997B Bonds "), have been duly issued and are presently outstanding and secured by this Restated Indenture in the principal amount of $7,000,000.

A.    Attached to this Restated Indenture as Exhibit C is a copy of the Seventh Supplemental Indenture setting forth the interest rate and other terms and conditions of the Series 1997B Bonds.

B.    References in Exhibit C to the section of the Original Indenture identified in the table below as the "Original Section" shall now refer to the section of the Restated Indenture set forth in the table below as the "Restated Section."

SECTION 2.04. Bonds of the Series 2007 . First Mortgage Bonds, 6.67% Series 2007, due November 20, 2037 (the " Bonds of the Series 2007 "), have been duly issued and are presently outstanding and secured by this Restated Indenture in the principal amount of $110,000,000. Attached to this Restated Indenture as Exhibit D is a copy of the Eighth Supplemental Indenture setting forth the interest rate and other terms and conditions of the Bonds of the Series 2007. References in the Eighth Supplemental Indenture to certain sections of the Original Indenture shall be references to the sections of this Restated Indenture set forth therein.

ARTICLE III

FORM, EXECUTION, DELIVERY,
REGISTRATION AND EXCHANGE OF BONDS

SECTION 3.01. Signature of Bonds . All Bonds to be secured hereby shall be signed by the President or a Vice President of the Company, whose signature may be a facsimile, and the corporate seal of the Company shall be thereto affixed and attested by its Secretary or an Assistant Secretary, whose signature may be a facsimile. The corporate seal of the Company may be affixed to any Bond by printing, engraving, lithographing, stamping or otherwise making, placing or affixing upon such Bond, by any process whatever, an impression, facsimile or other reproduction of such corporate seal. In case any officer who shall sign or seal any Bond as aforesaid shall cease to be such officer before the Bond so signed or sealed shall have been actually authenticated and delivered by the Trustee, such Bond may, nevertheless, upon the request of the Company, be issued, authenticated and delivered as though such person had not ceased to be an officer of the Company. Any Bond secured hereby may be signed or sealed by any person who may be an officer of the

Company at the time of such signing or sealing, although such person may not have been such officer at the date of such Bond.

SECTION 3.02. Numbering and Designation of Bonds . Any Bonds which may be authenticated under this Restated Indenture shall be numbered in such manner as may be determined by the Company and approved by the Trustee. Any such Bond may bear such additional letter or letters and/or other designation or designations and may contain therein or have imprinted thereon such legend or legends as may be required in order to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or of the Securities and Exchange Commission or to conform to usage.

SECTION 3.03. Delivery and Authentication of Bonds . All Bonds, when executed by the Company, shall be delivered to the Trustee, to be authenticated by it, and the Trustee shall authenticate and deliver the same only as provided in this Restated Indenture. Only such Bonds as shall bear thereon the certificate of the Trustee, duly signed, shall be secured by this Restated Indenture or entitled to any lien or benefit hereunder, and such certificate of the Trustee upon any such Bond executed on behalf of the Company shall be conclusive evidence and the only evidence that the Bond so authenticated has been duly issued hereunder and is entitled to the benefits of the trust hereby created.

SECTION 3.04. Series of Bonds . At the option of the Company the Bonds may be issued in one or more series. The Bonds of any series which may be issued hereunder shall be substantially in the same form as the General Form of Bond hereinbefore set forth, subject to such variations, additions, substitutions and omissions as are required or permitted by this Restated Indenture. The certificate of the Trustee for the authentication of Bonds shall in each case be substantially in the same form as the form thereof hereinbefore set forth. The Bonds of any series may (1) be of such denomination or denominations, (2) bear such rate of interest, payable on such interest payment dates, (3) mature at such time, and in the case of Bonds of serial maturities, at such times, (4) be payable and/or subject to registration and transfer at such place or places, (5) contain such provisions as to payment of, or payment without deduction for, or reimbursement for, any tax or taxes, (6) contain such provisions respecting any sinking or analogous fund and/or exchangeability for or convertibility into stock or other securities, (7) be redeemable upon such terms, (8) be payable in such currency or currencies, and (9) contain such other provisions not inconsistent with the terms of this Restated Indenture as may be specified in such Bonds and in the resolutions of the Board of Directors and in the supplemental indenture providing for the issue of such series. All Bonds of any one series shall be identical in all respects, except that they may differ as to date and, in the case of Bonds with serial maturities, as to time of maturity, interest rate and redemption price.

SECTION 3.05. Preference of Bonds . No series of Bonds issued hereunder shall have any preference as to the security afforded by this Restated Indenture over any other series of Bonds issued or to be issued hereunder, and no Bond of any series shall have any such preference over any other Bond of the same or any other series; provided, however , that the Company at any time may establish sinking, amortization, improvement, renewal or other analogous fund or funds for the exclusive benefit of any particular series (one or more) of such Bonds or make other provision for the amortization thereof, and the holders of any Bonds other than those for whose exclusive

benefit any such sinking, amortization, improvement, renewal or other analogous fund or funds shall have been so established shall have no interest therein or benefit therefrom, whether upon default under the provisions of this Restated Indenture or otherwise.

SECTION 3.06. Supplemental Indentures . Whenever the Company shall determine to create a new series of Bonds secured by this Restated Indenture, it shall file with the Trustee a Resolution authorizing such series, and shall execute, acknowledge and deliver a supplemental indenture describing such series and containing such other provisions as may be necessary or appropriate, including without limitation the following:

(1) the title of the Bonds of the series (which shall distinguish the Bonds of the series from Bonds of any other series);

(2) any limit upon the aggregate principal amount of the Bonds of the series which may be authenticated and delivered under this Restated Indenture (except for Bonds authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Bonds of the series);

(3) the person to whom any interest on a Bond of the series shall be payable, if other than the person in whose name that Bond is registered;

(4) the date or dates on which the principal of any Bonds of the series is payable;

(5) the rate or rates at which any Bonds of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the interest payment dates on which any such interest shall be payable and the record date for any such interest payable on any interest payment date;

(6) the place or places where the principal of and any premium and interest on any Bonds of the series shall be payable;

(7) the period or periods within which, the price or prices at which and the terms and conditions upon which any Bonds of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Resolution, the manner in which any election by the Company to redeem the Bonds shall be evidenced;

(8) the right, option or obligation, if any, of the Company to prepay, redeem or purchase any Bonds of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Bonds of the series shall be prepaid, redeemed or purchased, in whole or in part, pursuant to such obligation;

(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Bonds of the series shall be issuable;

(10) if the amount of principal of or any premium or interest on any Bonds of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;

(11) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Bonds of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose;

(12) if the principal of or any premium or interest on any Bonds of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Bonds are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Bonds as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);

(13) if applicable, that the Bonds of the series, in whole or any specified part, shall be defeasible and, if other than by a Resolution, the manner in which any election by the Company to defease such Bonds shall be evidenced;

(14) if applicable, the terms of any right to convert Bonds of the series into shares of Common Stock of the Company or an affiliate of the Company or other securities or property;

(15) if applicable, that any Bonds of the series shall be issuable in whole or in part in the form of one or more Global Bonds and, in such case, the respective Depositaries for such Global Bonds, the form of any legend or legends which shall be borne by any such Global Bond in addition to or in lieu of that set forth in Section 3.11 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 3.07 in which any such Global Bond may be exchanged in whole or in part for Bonds registered, and any transfer of such Global Bond in whole or in part may be registered, in the name or names of persons other than the Depositary for such Global Bond or a nominee thereof;

(16) any addition to or change in the Events of Default which applies to any Bonds of the series and any change in the right of the Trustee or the requisite Holders of such Bonds to declare the principal amount thereof due and payable pursuant to Section 11.02 ;

(17) any addition to or change in the covenants set forth in Article VIII which applies to Bonds of the series; and

(18) any other terms of the series (which terms shall not be inconsistent with the provisions of this Restated Indenture).

SECTION 3.07. Bond Register; Transfer of Bonds; Exchange of Bonds; Global Bonds . The Company shall cause to be kept at the corporate trust office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a place of payment being herein sometimes collectively referred to as the “Bond Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Bonds and of transfers of Bonds. The Trustee is hereby appointed “Bond Registrar” for the purpose of registering Bonds and transfers of Bonds as herein provided.

Upon surrender for registration of transfer of any Bond of a series at the office or agency of the Company in a place of payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Bonds of the same series, of any authorized denominations and of like tenor and aggregate principal amount.

At the option of the Holder, Bonds of any series may be exchanged for other Bonds of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Bonds to be exchanged at such office or agency. Whenever any Bonds are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Bonds which the Holder making the exchange is entitled to receive.

All Bonds issued upon any registration of transfer or exchange of Bonds shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Restated Indenture, as the Bonds surrendered upon such registration of transfer or exchange.

Every Bond presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Bond Registrar duly executed, by the Holder thereof or its attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Bonds, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Bonds.

As to any registered Bond, the registered holder shall for all the purposes of this Restated Indenture be regarded as the owner thereof and the payment of or on account of the principal of such Bond shall be made only to such registered holder or upon his or its order and all such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid.

The provisions of Clauses (1) , (2) , (3) and (4) below shall apply only to Global Bonds:

(1) Each Global Bond authenticated under this Restated Indenture shall be registered in the name of the Depositary designated for such Global Bond or a nominee thereof and

delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Bond shall constitute a single Bond for all purposes of this Restated Indenture.

(2) Notwithstanding any other provision in this Restated Indenture, no Global Bond may be exchanged in whole or in part for Bonds registered, and no transfer of a Global Bond in whole or in part may be registered, in the name of any person other than the Depositary for such Global Bond or a nominee thereof unless (A) such Depositary (i) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Bond or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Bond or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.06 .

(3) Subject to Clause (2) above, any exchange of a Global Bond for other Bonds may be made in whole or in part, and all Bonds issued in exchange for a Global Bond or any portion thereof shall be registered in such names as the Depositary for such Global Bond shall direct.

(4) Every Bond authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Bond or any portion thereof, whether pursuant to this Section or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Bond, unless such Bond is registered in the name of a person other than the Depositary for such Global Bond or a nominee thereof.

SECTION 3.08. Temporary Bonds . Pending the preparation of any definitive Bonds to be issued under and secured by this Restated Indenture, the Company may execute and deliver temporary printed Bonds, substantially of the tenor of the definitive Bonds, in denominations of One Thousand Dollars ($1,000) and/or any multiple thereof. Temporary Bonds may be issued without the provision entitling the holder to register the Bonds or a recital of specific redemption prices, and may contain such reference to any provision of this Restated Indenture as may be appropriate; and the text of the temporary Bonds may express the interest rate of the Bonds and the series thereof by reference to the title of the Bonds. Any such temporary Bonds shall be authenticated by the Trustee in the same manner as the definitive Bonds and such authentication shall constitute conclusive evidence that the temporary Bonds so authenticated have been duly issued under this Restated Indenture and that the holders thereof are entitled to the benefits of the trust hereby created. Such temporary Bonds issued and authenticated as aforesaid shall be exchangeable without expense to the holder for definitive Bonds of the same series and maturity to be issued under and secured by this Restated Indenture, and upon any such exchange such temporary Bonds shall be forthwith cancelled by the Trustee and delivered to the Company. Any such temporary Bonds may also be exchanged for other temporary Bonds of the same series and maturity and for the same aggregate principal amount. Until so exchanged, said temporary Bonds shall be in all respects entitled to the lien and security of this Restated Indenture as Bonds issued and authenticated hereunder. Upon demand, without unnecessary delay the Company will execute and will furnish definitive Bonds to be exchanged for such temporary Bonds upon surrender of such temporary Bonds at the office of the Trustee. The Bonds of each series shall be typewritten, printed, lithographed or engraved or

produced by any combination of these methods, if required by any securities exchange or automated quotations system on which the Bonds of such series may be listed or traded, on steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange or automated quotation system on which the Bonds of such series may be listed or traded, as applicable, all as determined by the officers executing such Bonds, as evidenced by their execution of such Bonds.

SECTION 3.09. Lost or Stolen Bonds . In case any Bond issued hereunder shall be mutilated, lost, stolen or destroyed, the Company may in its discretion issue and deliver and the Trustee shall authenticate a new Bond of like tenor and date in exchange and substitution for and upon cancellation of the mutilated Bond, or in lieu of and substitution for the Bond so lost, stolen or destroyed, upon receipt of evidence satisfactory to the Company and the Trustee of the ownership of such Bond and of the loss, theft or destruction of such Bond, and upon receipt also of indemnity satisfactory to each of them. Any Bonds issued pursuant to this Section shall constitute original, additional contractual obligations on the part of the Company and shall be secured equally and ratably with all other Bonds issued hereunder. Any such new Bond may bear such endorsement as may be prescribed by the Company, with the approval of the Trustee, and as may be required to comply with the rules and regulations of any stock exchange upon which the Bonds are listed or are to be listed or to conform to any usage with respect thereto.

SECTION 3.10. Rights of Exchanged or Substituted Bonds . Each Bond delivered pursuant to any provision of this Restated Indenture in exchange or substitution for the whole or any part, as the case may be, of one or more other Bonds shall carry all of the rights to interest accrued and unpaid, and to accrue, which were carried by the whole or such part, as the case may be, of such one or more other Bonds, and notwithstanding anything contained in this Restated Indenture, such Bond shall bear such date so that neither gain nor loss in interest shall result from such exchange or substitution.

SECTION 3.11. Legend for Global Bonds . Unless otherwise specified as contemplated by Section 3.06 for the Bonds evidenced thereby, every Global Bond authenticated and delivered hereunder shall bear a legend in substantially the following form:

 

THIS BOND IS A GLOBAL BOND WITHIN THE MEANING OF THE RESTATED INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

  

SECTION 3.12. CUSIP Numbers . The Company in issuing the Bonds may use “CUSIP” or other similar numbers (if then generally in use), and, if so, the Trustee may use “CUSIP” or such other numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Bonds or as contained in any notice of a redemption and that reliance may be placed only on

the other identification numbers printed on the Bonds, in which case neither the Company nor the Trustee, or any agent of any of them, shall have any liability in respect of any CUSIP number used on any such notice, and any such redemption shall not be affected by any defect in or omission of such numbers The Company shall promptly notify the Trustee in writing of any change in “CUSIP” numbers.

ARTICLE IV

GENERAL PROVISIONS AS TO ISSUE OF ADDITIONAL BONDS

SECTION 4.01. Amount of Bonds to be Issued . The aggregate principal amount of Bonds which may be secured by this Restated Indenture is not limited except as may be provided by law, but shall include such amount as may now or hereafter from time to time be authenticated and delivered under the provisions hereof.

SECTION 4.02. Issue of Additional Bonds . Bonds may be issued hereunder from time to time pursuant to Article V (on the basis of property hereafter acquired), Article VI (for refunding Bonds previously outstanding hereunder), and/or Article VII (on the deposit of cash), upon compliance with the provisions of this Article IV and the provisions of Articles V, VI or VII , whichever may be applicable.

SECTION 4.03. Documents to be Delivered to Trustee . Additional Bonds, when duly executed by the Company and delivered to the Trustee, shall be authenticated by the Trustee and delivered by it to or upon the Written Order of the Company, when the Trustee shall have received:

A.    An Application of the Company, requesting the authentication and delivery of such Bonds, specifying the Article of this Restated Indenture under which they are to be issued, stating that the granting thereof will not involve a violation of the provisions of Section 4.01 or Section 4.02 , and stating that the Company is not in default under any of the provisions of this Restated Indenture.

B.    A Resolution authorizing the issue of such additional Bonds, specifying the series thereof, describing such series and authorizing the supplemental indenture to be delivered in respect thereof, pursuant to the provisions of Section 3.06 .

C.    An Opinion of counsel,

(1)    Stating that the instruments which have been delivered to the Trustee conform to the requirements of this Restated Indenture and constitute sufficient authority under this Restated Indenture for the Trustee to authenticate and deliver the Bonds applied for, and that (a) on the basis of the Net Amount of Property Additions and/or Additions Credits described in said instruments delivered to the Trustee, or (b) on the basis of the refunding of Bonds described in said instruments, or (c) on the basis of the cash deposited with the Trustee, as the case may be, the

Bonds applied for may be lawfully authenticated and delivered under the applicable Article of this Restated Indenture.

(2)    Specifying the certificate or other evidence which will be sufficient to show compliance with the requirements, if any, of any mortgage recording tax law or other tax law applicable to the issue of the Bonds then applied for, or stating that there are no such legal requirements.

(3)    Specifying the certificate or other evidence which will be sufficient to show the authorization, approval or consent of or to the issue by the Company of the Bonds then applied for, by any Federal, State or other governmental regulatory body or commission at the time having jurisdiction in the premises, and stating that such authorization, approval or consent has been given or stating that no such authorization, approval or consent is required.

(4)    stating that such Bonds, when executed by the Company, authenticated and delivered by the Trustee and issued by the Company will be the legal, valid and binding obligations of the Company enforceable in accordance with their terms and the terms of this Restated Indenture and entitled to the benefits of and secured by the lien of this Restated Indenture equally and ratably with all other Outstanding Bonds.

D.     The certificates, instruments, bonds and/or other documents and/or moneys, if any, required by the provisions of Article V , Article VI , or Article VII , whichever may be applicable.

E.    The supplemental indenture.

F.    A certificate of the Company, stating that all conditions precedent relating to the authentication and delivery of the Bonds applied for have been complied with.

Each such application and every certificate and opinion delivered in connection therewith shall be made and dated not more than sixty (60) days prior to the date of authentication and delivery of additional Bonds pursuant thereto, or such lesser number of days as may be particularly specified in Articles V , VI , or VII .

ARTICLE V

ISSUE OF ADDITIONAL BONDS UPON THE BASIS
OF PROPERTY ADDITIONS OF THE COMPANY

SECTION 5.01. Documents to be Delivered to Trustee . Additional Bonds may from time to time be issued pursuant to the provisions of this Article V upon the basis of Property Additions in a principal amount not exceeding seventy percent (70%) of the Net Amount of Property Additions of the Company and/or Additions Credits shown in the Property Additions Certificate required to be delivered by Paragraph B of this Section 5.01 , upon receipt by the Trustee of the following:

A.     The Application of the Company, Resolution, Opinion of Counsel and other documents required to be delivered by Section 4.03 .

B.     A Property Additions Certificate of the Company, dated not more than forty-five (45) days prior to the application for the authentication and delivery of such Bonds, setting forth in substance:

(1)    That the Company has acquired, by purchase, construction or otherwise, certain Property Additions therein either (i) briefly described or (ii) described by a statement of the principal subdivisions of plant account (or the job orders, in the case of Property Additions in the process of construction or erection) to which the cost of such Property Additions has been charged, with a statement that such Property Additions are (with specified exceptions, if any) all of the Property Additions acquired by the Company prior to a date specified therein.

(2)    That no part of said Property Additions consists of Funded Property or is included in any other application or certificate then pending with the Trustee under which said Property Additions or any part thereof would become Funded Property.

(3)    Whether the Property Additions described in said Certificate include any additional tract or parcel of real estate, and if so, a separate description of such tract or parcel shall be included in the Certificate.

(4)    That there is no outstanding indebtedness of the Company for the purchase price or construction of, or for labor, wages or materials in connection with the construction of, such Property Additions which could become the basis of a lien upon said Property Additions prior to the lien of this Restated Indenture which, in the opinion of the signers of said Certificate, might materially impair the security afforded hereby.

(5)    Whether any part of the Property Additions described in said Certificate was acquired by the Company, in whole or in part, for a consideration consisting of securities; and, if so, such Property Additions shall be separately described, and said securities shall also be described.

(6)    That the cost to the Company of said Property Additions, computed and ascertained in accordance with sound accounting practice, is a specified amount. In the case of Property Additions of the character described in Clause (5) of this

Paragraph, the portion of the cost thereof represented by securities shall not exceed the fair value of such securities as shown by the Certificate filed with the Trustee pursuant to Paragraph C of this Section.

(7)    That the fair value of said Property Additions to the Company at the date of such Certificate is a specified amount. The fair value of property of the character referred to in the following Clause (13) shall be separately stated.

(8)    That all the Property Additions described in said Certificate constitute Property Additions as said term is defined in Section 1.01 .

(9)    That none of said Property Additions is subject to any lien, charge or encumbrance prior to the lien of this Restated Indenture, except Permitted Encumbrances.

(10)    A computation of the Net Amount of Property Additions (which amount shall not be less than zero), reflecting all Retirements up to the date of said Certificate which have not been included in a previous Certificate filed with the Trustee pursuant to this Paragraph B or pursuant to Subdivision (1) of Section 10.08 , and any unused Retirements Credits which the Company desires then to use.

(11)    A brief description of such Retirements and any such unused Retirements Credits by a statement of the principal subdivisions of plant account in which such Retirements have been reflected.

(12)     Whether there is any Additions Credit which the Company desires to use, in whole or in part, and if so:

(a)    A statement of the entire amount thereof, and also of the amount which the Company so desires to use in support of the particular Application.

(b)    A reference to the Certificate or Certificates which originally created each such Additions Credit, and a reference to the instances, if any, in which any parts of such Additions Credits have been previously used.

(c)    A statement that no portion of any such Additions Credits which the Company so desires to use has theretofore been used by the Company for any purpose of this Restated Indenture.

(13)    If any part of the Property Additions described in the Certificate consists of property which, within six months prior to the date of acquisition thereof by the Company, has been used or operated by others than the Company in a business similar to that in which it has been used or operated by the Company, it shall be separately described, and if such part of said Property Additions shall be shown

pursuant to Clause (7) of this Paragraph B to have a fair value to the Company at least equal to the greater of One Hundred Thousand Dollars ($100,000) or five percent (5%) of the aggregate principal amount of all Bonds at the time outstanding hereunder, then the Property Additions Certificate, in so far as such property is concerned, shall be signed also, as to Clauses (1) , (7) and (8) , by an Independent Engineer.

C.    In case any part of such Property Additions is shown by said Certificate to have been acquired by the Company, in whole or in part, for a consideration consisting of securities, a Certificate, signed by an Independent appraiser selected by the Company and approved by the Trustee in the exercise of reasonable care, who need not be engaged in the business of appraising, stating the fair value, in the opinion of the signer, of such securities at the time of the delivery thereof as consideration for the acquisition of such part of such Property Additions.

D.    The Mortgages, Deeds, Conveyances, Assignments, Transfers and Instruments of further assurance and the Certificate or Certificates and other evidence, if any, specified in the Opinion of Counsel required by Section 4.03 and by the following Paragraph E .

E.    An Opinion of Counsel,

(1)     Specifying the mortgages, deeds, conveyances, assignments, transfers and instruments of further assurance, if any, which will be sufficient to subject to the direct lien of this Restated Indenture the Property Additions described in said Certificate, and stating that upon the recordation or filing in the manner stated in such opinion of the instruments so specified, no further recording or re-recording or filing or re-filing of this Restated Indenture or any other instrument is required to maintain the lien of this Restated Indenture upon such Property Additions as against creditors and subsequent purchasers, or stating what further recordation or filing of this Restated Indenture or any supplemental indenture is or will be necessary for that purpose; or stating that said Property Additions are then subject to the direct lien of this Restated Indenture and that no such mortgage, deed, conveyance, transfer or instrument of further assurance is necessary for such purpose.

(2)     Stating that the Company has a good and valid title to said Property Additions, and that the same and every part thereof is free and clear of all liens, charges and encumbrances except Permitted Encumbrances.

(3)    Stating that the Company has lawful power to acquire, own and use said Property Additions in its business; and, to the extent that any franchise, permit, license, right-of-way, or easement is necessary for the maintenance and use of such Property Additions, that the Company lawfully holds such franchises, permits, licenses, rights-of-way and easements and that each such franchise, permit, license, right-of-way or easement is in the opinion of such counsel adequate for the purposes

for which acquired by the Company, as such purposes have been described to such counsel by the Company.

F.    A Certificate of the Company respecting Net Earnings Available for Interest, dated not more than forty-five (45) days prior to the application for the authentication and delivery of such Bonds, signed also by a certified public accountant engaged in the independent practice of accounting, selected by the Company and acceptable to the Trustee, setting forth:

(1)    A computation of the Net Earnings Available for Interest of the Company for a period of twelve consecutive calendar months within the fifteen calendar months immediately preceding the date of such certificate.

(2)    The aggregate amount of the annual interest charges on

(a)     all Bonds outstanding hereunder at the date of said Certificate;

(b)     the Bonds, the authentication and delivery of which is applied for in such application or in any other pending application; and

(c)    all indebtedness outstanding at the date of said Certificate and secured by a lien (other than a Permitted Encumbrance) prior to, or on a parity with, the lien of this Restated Indenture on property subject to the lien hereof, unless the net earnings of such property are excluded pursuant to the provisions of Section 1.01(hh) from the computation of Net Earnings Available for Interest required to be made by Clause (1) of this Paragraph.

(3)    That the amount of Net Earnings Available for Interest of the Company set forth as provided by Clause (1) of this Paragraph is at least equal to two (2) times the aggregate amount of the annual interest charges set forth as provided by Clause (2) of this Paragraph.

Such Certificate of the Company respecting Net Earnings Available for Interest need not be signed by a certified public accountant if such Certificate shall be accompanied by a computation of the Net Earnings Available for Interest of the Company during the preceding calendar year, signed by a certified public accountant engaged in the independent practice of accounting, showing that the amount of Net Earnings Available for Interest of the Company for such calendar year is at least equal to two (2) times the aggregate amount of the annual interest charges set forth in Clause (2) of the Certificate of the Company respecting Net Earnings Available for Interest.

Any such Certificate of the Company which includes net earnings of after-acquired property in accordance with the third paragraph of Section 1.01(hh) need only be signed by a certified public accountant engaged in the independent practice of accounting with respect to amounts and periods therein which do not include such after-acquired property.

The calculations which include net earnings of after-acquired property shall be certified by a senior financial officer of the Company which for purposes of this Section 5.01 shall be the chief financial officer, principal accounting officer, treasurer or controller of the Company.

G.     A Certificate of the Company dated the date of authentication and delivery of the Bonds to the effect that:

(1)    The aggregate amount of Retirements which have occurred after the date of the Certificate of the Company filed with the Trustee pursuant to the foregoing Paragraph B and prior to the authentication and delivery of the Bonds does not have a cost basis greater than five percent (5%) of the Net Amount of Property Additions specified in said Certificate.

(2)    The amount of annual interest charges set forth in Clause (2) of the Net Earnings Certificate filed pursuant to the foregoing Paragraph F has not been increased after the date of such certificate and before the authentication and delivery of the Bonds.

ARTICLE VI

ISSUE OF ADDITIONAL BONDS UPON RETIREMENT
OF BONDS PREVIOUSLY OUTSTANDING HEREUNDER

SECTION 6.01. Amount Issuable . Additional Bonds shall be issuable for refunding pursuant to this Article to an aggregate principal amount equal to the aggregate principal amount of Bonds of any one or more series issued under this Restated Indenture which shall have previously been cancelled or surrendered to the Trustee for cancellation or otherwise retired, or shall be cancelled or surrendered for cancellation or otherwise retired at the time of the authentication and delivery of such additional Bonds by the Trustee hereunder, and/or for the retirement of which provision shall then be made, all as hereinafter in this Article provided.

SECTION 6.02. Documents to be Delivered to Trustee . Additional Bonds shall be authenticated and delivered pursuant to this Article when the Trustee shall have received:

A.     The application of the Company, Resolution, Opinion of Counsel and other documents required to be delivered by Section 4.03 .

B.     The Bonds made the basis of the application (other than any Bonds as to which cash shall be deposited in accordance with Paragraph C of this Section). Such Bonds may be cancelled or uncancelled or may bear endorsements as to partial payments pursuant to Clause (b) of Section 9.02 , and if uncancelled shall be accompanied by proper instruments of assignment and transfer. A certificate of the Trustee to the effect that particular Bonds

have been cancelled shall be received by the Trustee as the equivalent of such Bonds for the purpose of this Paragraph B .

C.     Cash sufficient to pay the principal, premium, if any, and interest to maturity or to the redemption date, as the case may be, with respect to Bonds made the basis of the application and not to be delivered to the Trustee pursuant to Paragraph B of this Section contemporaneously with its authentication and delivery of the additional Bonds applied for, together, as to all such Bonds to be redeemed, with (a) proof satisfactory to the Trustee that due notice of redemption of such Bonds has been given, or (b) proof satisfactory to the Trustee that arrangements have been made insuring that such notice will be given, or (c) a written instrument executed by the Company under its corporate seal, and expressed to be irrevocable, authorizing the Trustee to give such notice for and on behalf of the Company.

D.     A Certificate of the Company, stating that none of the Bonds to be refunded are (1) Bonds which shall have been purchased, redeemed or otherwise retired through the application of Funded Cash, (2) Bonds, the retirement of which shall have been made the basis of the withdrawal of Funded Cash under any provisions of this Restated Indenture, (3) Bonds which shall have been retired through the operation of, or delivered to the Trustee in satisfaction of the obligation of the Company in respect of, any provisions for an amortization, improvement, renewal, sinking, or other analogous fund contained in any indenture supplemental hereto, (4) Bonds which shall have been cancelled upon the issuance of other Bonds in exchange or substitution therefor, or (5) Bonds made the basis of any previous application pursuant to this Section 6.02 .

In the event of any deposit of cash under Paragraph C of this Section, the Company shall, from time to time, upon delivery to the Trustee for cancellation of any Bond against which such deposit shall have been made, be entitled to receive from the Trustee the cash so deposited against such Bond. All cash so deposited with the Trustee shall, unless so repaid to the Company upon surrender of such Bonds, be applied by the Trustee to the redemption on the redemption date or to the payment at maturity of the Bonds against which it was deposited.

SECTION 6.03.      Disposition of Retired Bonds . Any Bonds received by the Trustee pursuant to this Article shall, if not previously cancelled, be cancelled by the Trustee.

ARTICLE VII

ISSUE OF ADDITIONAL BONDS UPON
DEPOSIT OF CASH WITH TRUSTEE

SECTION 7.01. Amount Issuable . Additional Bonds may from time to time be issued hereunder to an aggregate principal amount equal to the amount of cash deposited for that purpose with the Trustee pursuant to this Article.

SECTION 7.02. Documents and Cash to be Delivered to Trustee . Additional Bonds shall be authenticated and delivered pursuant to this Article when the Trustee shall have received:

A.    The Application of the Company, Resolution, Opinion of Counsel and other documents required to be delivered by Section 4.03 .

B.    The Cash made the basis of the application.

C.    A Certificate of the Net Earnings Available for Interest, as required by Paragraph F of Section 5.01 .

D.    A Certificate of the Company, as required by Clause (2) of Paragraph G of Section 5.01 .

SECTION 7.03. Alternative Delivery to Company of Cash Deposited with Trustee . Cash deposited with the Trustee pursuant to this Article shall be held by the Trustee as part of the mortgaged property, and whenever the Company shall become entitled to the authentication and delivery of Bonds under Article V or VI , the Trustee shall pay to the Company, in lieu of each Bond which the Company may then be so entitled to have authenticated and delivered, a sum in cash equal to the principal amount of such Bond, upon delivery to the Trustee of:

A.    An Application of the Company requesting such payment and stating that the Company is not in default under any of the provisions of this Restated Indenture.

B.    An Opinion of Counsel stating that such Counsel has examined the documents submitted to the Trustee in connection with the application and that they are in proper form and comply with the requirements of this Restated Indenture.

C.    The Certificate, Instruments, Securities and/or other documents and/or moneys, if any, required by the provisions of Section 5.01 or of Section 6.02 , as the case may be, other than the documents required by Section 4.03 , and other than the certificates required by Paragraph F of Section 5.01 and by Clause (2) of Paragraph G of Section 5.01 .

SECTION 7.04. Cash Deposited and Not Paid to Company . If at any time the Company shall so direct, any sums deposited with the Trustee under the provisions of Section 7.02 and not theretofore paid to the Company pursuant to Section 7.03 shall from time to time be applied pursuant to the provisions of Subdivision (3) of Section 10.08 .

ARTICLE VIII

CERTAIN COVENANTS

In addition to the covenants on its part contained elsewhere in this Restated Indenture, the Company covenants as follows:

SECTION 8.01. Seizin; Authority to Mortgage; Maintenance of Lien of Indenture. The Company is lawfully seized and possessed of and has good title to all property described in the granting clauses hereof as being presently mortgaged and pledged hereunder, and has good right and lawful authority to mortgage and pledge the same as provided in and by this Restated Indenture; said property is free and clear of all liens and encumbrances except those referred to in the granting clauses hereof; and the Company warrants and will defend the title to such property and every part thereof to the Trustee, its successors in the trust and assigns, forever, for the benefit of the holders of the Bonds, against the claims and demands of all persons whomsoever.

This Restated Indenture is and always will be kept a first lien upon the mortgaged property and upon every part thereof, subject only to Permitted Encumbrances and to other encumbrances herein expressly permitted.

SECTION 8.02. Further Assurances . At any and all times the Company will do, execute, acknowledge, deliver, file and/or record, and will cause to be done, executed, acknowledged, delivered, filed and/or recorded, all and every such further acts, deeds, conveyances, mortgages, transfers and assurances in law as may be necessary or as the Trustee shall reasonably require for the better assuring, conveying, pledging, transferring, mortgaging, assigning and confirming unto the Trustee all and singular the hereditaments and premises, estates and property hereby conveyed, pledged, transferred or assigned, or intended so to be.

SECTION 8.03. Punctual Payment; Deposited Cash to be held in Trust . The Company will duly and punctually pay or cause to be paid the principal of, and premium, if any, and interest on all of the Bonds at any time issued and outstanding hereunder in full and in strict accord with the terms thereof and of this Restated Indenture; and on or prior to the date on which each installment of principal (and premium, if any) or interest shall become due it will set aside in trust or will deposit or cause to be deposited in trust with its paying agent or agents the amount in cash necessary to pay the principal (and premium, if any) and interest due on such date. Each such installment of money so deposited shall (subject to the provisions of Section 15.02 ) be held in trust for the account of the holder or holders of the obligations due on such date and shall be applied to the payment thereof. All Bonds so paid shall be forthwith cancelled.

Subject to the provisions of Section 15.02 , money deposited with the Trustee or with any paying agent or held by the Company for the purpose of paying the principal of or interest (or premium, if any) on Bonds shall constitute a trust fund for such purpose and for no other purpose whatever. Every paying agent which may be appointed for the purpose of making payments of the principal of or the interest (or premium) on any Bond shall be required to notify the Trustee promptly of any default by the Company, or any other obligor upon the Bonds, in the payment of any such principal or interest (or premium).

SECTION 8.04. Payment of Taxes; No Prior or Equal Liens except as Stated . The Company will pay or cause to be paid all taxes and assessments lawfully levied or assessed upon the Company or upon the mortgaged property or upon any part thereof or upon any income therefrom or upon the interest of the Trustee in the mortgaged property, when the same shall become due, and will duly observe and conform to all valid requirements of any governmental authority relative to any

of the mortgaged property, and all covenants, terms and conditions upon or under which any of the mortgaged property is held; it will not create or suffer to be hereafter created any lien upon the mortgaged property, or any part thereof, or income therefrom, prior to, or having equality with, the lien of these presents, except Permitted Encumbrances and except (i) any mortgage or other lien on any property hereafter acquired by the Company which may exist at the date of the acquisition of such property by the Company and (ii) purchase money mortgages created by the Company at the time of acquisition of such property; provided that except for purchase money mortgages securing, in the aggregate, not in excess of One Million Dollars ($1,000,000), in no event shall the amount secured by any mortgage or lien permitted by the foregoing Clauses (i) and (ii) be in excess of seventy percent (70%) of the cost or fair value at the time of acquisition, whichever is less, of the property subject thereto; and, provided further, that at the time of creation, issuance, assumption, guarantee or incurrence of any indebtedness secured by any mortgage or lien permitted by the foregoing Clauses (i) and (ii) and after giving effect thereto and the application of the proceeds thereof, the sum of (a) the aggregate amount of all indebtedness secured by mortgages or liens permitted by the foregoing Clauses (i) and (ii) plus (b) the aggregate amount of all indebtedness of Subsidiaries, shall not exceed ten percent (10%) of the net book value of all fixed assets of the Company determined as of the end of the fiscal year of the Company immediately preceding the date of creation, issuance, assumption, guarantee or incurrence of any such indebtedness.

Within three months after the accruing of any lawful claims or demands for labor, material, supplies or other objects or any lawful claims or demands of a government or governmental authority, which, if unpaid, might by law be given precedence over this Restated Indenture as a lien or charge upon the mortgaged property or the income thereof, it will pay or cause to be discharged or make adequate provision to satisfy or discharge the same; and it will not suffer to be done any matter or thing whereby the lien hereof might or could be impaired.

Nothing in this Section shall require the Company to observe or conform to any requirement of any governmental authority or to pay or cause to be paid or discharged, or make provision for, any such prior lien or charge so long as the validity thereof shall be contested by it in good faith and by appropriate legal proceedings, unless thereby any of the mortgaged property may be lost or forfeited.

The Company will not claim or demand or be entitled to receive any credit on the interest payable on the Bonds or on any other payments secured hereby for any portion of the taxes assessed against the mortgaged property. No deduction shall be made by reason of this Restated Indenture from the taxable value of the mortgaged property or any part thereof if the holders of the Bonds or the Trustee would thereby be prejudiced in any way. The provisions of any present or future law, statute or constitutional provision permitting or entitling the Company to receive any such credit or to make any such deduction are hereby expressly waived.

SECTION 8.05. Recording; Corporate Existence; Opinion of Counsel . The Company will cause this Restated Indenture and every instrument amendatory hereof or supplementary hereto which shall be executed pursuant to the provisions hereof, forthwith upon execution, to be recorded as a real estate mortgage and filed as a security interest under the Uniform Commercial Code as required by law under the applicable state jurisdictions and will, to the extent permitted by law, pay

any mortgage recording or filing or other tax legally due upon such recording and filing or the issuing of Bonds hereunder, and will punctually and fully comply with the requirements of any and every mortgage recording tax law or other law, or direction of the Trustee, affecting the due recording and re‑recording and filing and re-filing of this Restated Indenture or of such additional instruments in such manner as may be necessary fully to preserve, continue and protect the security and validity of the Bonds, the superior lien of this Restated Indenture on the trust estate and the rights and remedies of the Trustee.

The Company will in due time take all steps which may be necessary to maintain its corporate existence.

    

Promptly after the execution and delivery of this Restated Indenture and every instrument amendatory hereof or supplementary hereto which shall be executed pursuant to the provisions hereof, the Company will furnish to the Trustee an Opinion of Counsel, either stating that in the opinion of such counsel this Restated Indenture and all such instruments have been properly recorded and filed so as to make effective the lien intended to be created hereby and that all other action required by the first paragraph of this Section 8.05 theretofore to have been taken has been taken, and reciting the details of such action, or stating that in the opinion of such counsel no such recording, filing or other action is necessary to make such lien effective.

The Company agrees upon each and every purchase or acquisition by the Company hereafter of property which under the terms hereof is upon acquisition to be subject to this Restated Indenture, to record and/or re‑record and/or file or re-file this Restated Indenture, and/or a duplicate hereof and/or a further separate and supplemental mortgage, and/or assignment, if and to the extent that such action may be required by law in order effectively to subject such property to the lien hereof and to preserve the priority of such lien, or as may be directed by the Trustee, in the proper office or offices of the county or counties or other recording districts in which such property is situated, or in any other office, and to do every other act and thing necessary to effectuate the lien hereof in respect thereof.

Without limiting the generality of the foregoing covenants of this Section, the Company will furnish to the Trustee upon request and in any event on or before May 1st in each year, the following:

A.    A Certificate of the Company, briefly describing (or referring to descriptions thereof in other Certificates of the Company then or theretofore delivered to the Trustee) each item of property which was acquired in the preceding calendar year at a cost of Two Hundred Fifty Thousand Dollars ($250,000) or more and which under the terms hereof is subject to the lien of this Restated Indenture or required so to be. If any item of property described in such Certificate is an additional tract or parcel of real estate, a separate description of such tract or parcel shall be included in the Certificate.

 

B.    An Opinion of Counsel,

(1)    Specifying the mortgages, deeds, conveyances, assignments, transfers and instruments of further assurance, if any, which will be sufficient to subject such property to the direct lien of this Restated Indenture or stating that no such instruments are necessary for such purpose, and stating that, upon the recordation or filing, in the manner stated in such opinion, of the instrument so specified, if any, or upon the recordation or filing of this Restated Indenture or and supplemental indenture in the manner stated in such opinion, or without any recordation or filing, this Restated Indenture will constitute a valid lien upon such property.

(2)     Stating what action, if any, of the Company or the Trustee is necessary or advisable under the statutes of the State of Wyoming or other applicable law to maintain the lien of this Restated Indenture as against creditors and subsequent purchasers and stating whether, under the then applicable law, any such action will be necessary or advisable within the next ensuing period of twelve months. If any instruments are necessary or advisable for such purpose, such opinion shall specify the same.

(3)     Either stating that in the opinion of such counsel such action has been taken with respect to the recording, filing, re-recording and re-filing of this Restated Indenture and all indentures supplemental hereto, as is necessary to maintain the lien of the Restated Indenture, and citing the details of such action, or stating that in the opinion of such counsel no such action is necessary to maintain such lien.

C.     The Mortgages, Deeds, Conveyances, Assignments, Transfers and instruments of further assurance and other instruments, if any, as specified in the opinion required by the foregoing Paragraph B .

To the extent permitted by law the Company will bear all expenses in connection with the preparation, recording, filing, re-recording or re-filing of all such instruments specified in said Opinion of Counsel.

SECTION 8.06 Maintenance and Preservation of Mortgaged Premises; Prompt Classification of Retirements; Examination by Independent Engineer . The Company will at all times maintain, preserve and keep the mortgaged premises, and every part thereof, with the appurtenances and every part and parcel thereof, in good repair, working order and condition, and will from time to time make all needful and proper repairs and renewals, replacements and substitutions, so that at all times the efficiency of the property hereby mortgaged shall be fully preserved and maintained, and, subject to the provisions hereof, will maintain its corporate existence and will use its best efforts to maintain, preserve and renew all the rights, powers, privileges and franchises by it owned, and otherwise to maintain its rights in respect of its Gas Business and its Electric Business.

Nothing in this Section contained shall be held to prevent the Company from discontinuing the operation of any of its plants, works or properties, if, in the judgment of the Board of Directors of the Company, it is no longer advisable, in connection with the operation of the other properties of the Company, to operate the same; nor shall anything in this Section contained be considered to prevent the Company from taking such action with respect to its plants, works and properties as is proper under the circumstances, including the cessation or omission to exercise rights, permits, licenses, privileges or franchises which, in the judgment of the Board of Directors of the Company, can no longer be profitably exercised or availed of, in connection with the operation of the other properties of the Company.

The Company will promptly classify as Retirements for the purpose of the computation of Net Property Additions hereunder all Funded Property, except land owned in fee simple, that has permanently ceased to be used or useful in the Gas Business and the Electric Business of the Company.

Whenever the holders of not less than a majority in amount of the Bonds shall so request the Trustee in writing, the Trustee shall select in the exercise of reasonable care an Independent Engineer of national reputation and the Company at its own expense shall promptly appoint such Independent Engineer to make an inspection of the mortgaged property and within a reasonable time after his appointment to report to the Company and to the Trustee whether or not the mortgaged property, as an operating system, has been maintained in good repair, working order and condition in accordance with the covenants hereinabove in this Section set forth, and whether or not the Company shall have complied with the covenants in the next preceding paragraph regarding the classification of Funded Property as Retirements; provided that the Company shall not be obligated to make more than one such appointment within any period of forty-eight (48) months.

If such Independent Engineer shall report that the mortgaged property as an operating system has not been so maintained he shall specify in his report the character and extent of, and the estimated cost of making good, the deficiency in such maintenance, and, if longer than one year, the time reasonably necessary to make good such deficiency. Said report shall be placed on file by the Trustee and shall be open to inspection by any bondholder at any reasonable time.

The report of such Independent Engineer shall be binding upon the Trustee, the Company and the bondholders unless, within thirty (30) days after filing of the report, the Company (by notice in writing to the Trustee) states that such report is not approved, specifying with reasonable particularity the matters therein which are not approved. All matters so specified in such notice shall forthwith be referred to three arbitrators selected in the following manner:

The Trustee, within ten (10) days after receipt of notice, shall name one arbitrator and give notice of such selection to the Company. Within ten (10) days after receipt of such notice of selection, the Company shall name one arbitrator and give notice of such selection to the Trustee, and failure so to do shall entitle the Trustee to name an arbitrator to represent the Company. The two thus selected shall, within ten (10) days after the appointment of the arbitrator representing the Company, select a third arbitrator, but if said arbitrators are unable within said ten (10) days to agree upon such third arbitrator then, upon the application of either the Company or the Trustee, the person

who is the District Judge of the United States of America for the District of Wyoming, senior in service, shall have the power to appoint such third arbitrator upon application to said District Judge by either the Company or the Trustee on five (5) days notice thereof to the other. Each of such three arbitrators so selected shall be an Independent Engineer.

The written decision of a majority of such arbitrators shall be filed as soon as practicable with the Trustee and a copy thereof delivered to the Company, and shall be binding upon the Trustee, the Company and the bondholders.

If such written decision shall modify the report of the Independent Engineer which was the subject of arbitration, reference hereinafter in this Section 8.06 to such report of the Independent Engineer shall be deemed to mean the report of such Independent Engineer as modified by the decision of such arbitrators. Pending the final determination pursuant to the foregoing provisions of this Section as to whether or not the mortgaged property has been maintained as an operating system in good repair, working order and condition, the statements contained in the report of such Independent Engineer which is the subject of arbitration shall not be deemed evidence of failure to comply with the provisions of this Section.

In the computation hereunder of the Net Amount of Property Additions, after any such report of an Independent Engineer shall have been filed with the Trustee, the Company shall classify as Retirements, at the amount or amounts which such report specifies, the property which said report states should be classified as Retirements for the purpose of such computation and which has not been retired on the books of the Company.

The Company shall, with all reasonable speed, do such maintenance work as may be necessary to make good such maintenance deficiency, if any, as shall have been specified to exist in such report, and upon completion thereof such Independent Engineer (or, in the case of his refusal or inability to act, some other Independent Engineer of national reputation selected by the Trustee in the exercise of reasonable care) shall report in writing to the Trustee that the maintenance deficiency specified in said report has been made good.

Unless the Trustee shall be so informed in writing by such Independent Engineer within one year from the date of the report with respect to the maintenance deficiency (or such longer period as may be specified in such report to be reasonably necessary for the purpose), that such maintenance deficiency has been made good, the Company shall be deemed to have defaulted in the due performance of the covenants of this Section with respect to the maintenance of the mortgaged property; and in any proceedings consequent upon such default; said report of such Independent Engineer shall be conclusive evidence against the Company of the existence of the facts and conditions therein set forth, and the Trustee shall be fully protected in relying thereon.

All expenses incurred pursuant to this Section shall be borne by the Company.

In the event that any regulatory authority having jurisdiction over the Company in the premises shall determine that the expenditures required by this Section for repairs and maintenance are excessive or shall, by order or regulation, prohibit, in whole or in part, any such expenditures

for repairs and maintenance, then, upon filing with the Trustee a certified copy of such order or a copy of such regulation, as the case may be, the Company shall, so long as such order or such regulation remains in effect, be relieved from compliance with the covenants contained in this Section, to the extent that such expenditures for repairs and maintenance shall have been held excessive or shall be prohibited.

SECTION 8.07. Insurance; Disposition of Insurance Proceeds . The Company will at all times keep all its property which is of an insurable nature and of the character usually insured by companies operating properties similar to the properties of the Company, insured against loss or damage by fire and from other causes customarily insured against by similar companies and in such relative amounts as are usually insured against by such companies. The Company will also maintain insurance with such insurance companies and associations against loss or damage from other hazards and risks to its properties, to the property of others and to the person, of the character usually maintained by companies engaged in the same or similar business similarly situated; provided, however, that the Company may effect Workmen's Compensation Insurance with respect to operations in any particular state or other jurisdiction through an insurance fund operated by such state or other jurisdiction, or by adequate reserves for self insurance, if permitted by the laws of such state or other jurisdiction.

All insurance policies covering risks to the mortgaged property shall provide that if any insurance moneys in excess of Five Million Dollars ($5,000,000) in the aggregate are payable in respect of any one loss under all policies covering such loss, all insurance moneys payable in respect of such loss shall be payable to the Trustee as its interest may appear. If so requested in writing by the Trustee, the Company shall cause policies for insurance against risks to the mortgaged property to be delivered to the Trustee, or in lieu thereof, lists of such policies showing the numbers of the policies in effect, the names of the issuing companies, the amounts of such policies, and the property covered by each.

Whenever any proceeds of insurance representing loss of or damage to any part of the mortgaged property and aggregating Five Million Dollars ($5,000,000) or less in respect of any one loss shall be received by the Company, the Company will (unless the aggregate proceeds since the beginning of the current calendar year as to which the provisions of this paragraph are applicable shall be Five Hundred Thousand Dollars ($500,000) or less) within six months thereafter deliver to the Trustee:

A.    A Certificate of the Company setting forth

(1)    The amount of insurance moneys so received.

(2)    That a specified amount (i) has been applied by the Company to the replacement, renewal, repair or rebuilding of the destroyed or damaged property or (ii) is required to pay obligations incurred for the replacement, renewal, repair or rebuilding of the damaged or destroyed property.

B.     Cash in an amount equal to the excess, if any, of the amount specified in Clause (1) of the Certificate of the Company delivered pursuant to the foregoing Paragraph A over the amount specified in Clause (2) of such Certificate of the Company.

Any insurance moneys received by the Trustee under any of the provisions of this Section 8.07 shall be held by the Trustee, and shall be paid over to the Company by the Trustee upon receipt of an Application of the Company so requesting—

(1)    In the case of any loss in an amount of Ten Million Dollars ($10,000,000) or less, such moneys shall be paid over in an amount equal to expenditures made in repairing or replacing the damaged or destroyed property for which such insurance moneys were paid, or the fair value to the Company of such repairs or replacements, whichever shall be the lesser amount, upon receipt by the Trustee of a Certificate of the Company, signed also by an Engineer, showing the expenditures made for such purposes and stating that the fair value to the Company of such repairs or replacements is not less than the expenditures so made.

(2)    In the case of any loss in an amount greater than Ten Million Dollars ($10,000,000), and also, at the option of the Company, in the case of any loss in an amount of Ten Million Dollars ($10,000,000) or less, such moneys shall be paid over in an amount equal to the Gross Amount of Property Additions shown in the Property Additions Certificate delivered pursuant to Clause (c) of Paragraph B below, upon receipt by the Trustee of the following:

(i)     shall contain a further statement in Clause (1) thereof to the effect that no part of the Property Additions therein described has

been acquired by the Company more than two (2) years prior to the delivery of such Property Additions Certificate,

(ii)    shall contain a further statement in Clause (2) thereof to the effect that the Property Additions therein described have not theretofore been used by the Company for any purpose of this Restated Indenture, and

(iii)    shall omit the data required by Clauses (10) , (11) and (13) of said Paragraph B , and such certificate shall show only the Gross Amount of Property Additions.

SECTION 8.08. Certificate of Compliance with respect to Insurance . There shall be deposited with the Trustee, at such reasonable times as it may request, and at least once in each year on or before May 1 without any such request, a Certificate of the Company stating that the Company has at all times during the preceding calendar year complied with the provisions of Section 8.07 , and including a detailed statement of the policies of insurance outstanding and in force at the end of the preceding calendar year. In case the Trustee shall at any time notify the Company in writing that it disapproves of any insurance company with which the Company has taken out any insurance, other insurance satisfactory to the Trustee shall forthwith be effected by the Company.

SECTION 8.09. Advances by Trustee if Company Fails to Perform . If the Company shall fail to perform any of the covenants contained in Sections 8.04 and 8.07 , the Trustee may make advances to perform the same in its behalf, but, except as otherwise required by Section 14.01 , shall be under no obligation so to do; and all sums so advanced shall be at once repayable by the Company, and shall bear interest at six percent (6%) per annum until paid, and shall be secured hereby, having the benefit of the lien hereby created in priority to the Bonds issued hereunder, but no such advance shall be deemed to relieve the Company from any default hereunder.

SECTION 8.10. Books and Records; Inspection by Trustee . The Company will keep books of record and account, in which full, true and correct entries will be made of all dealings or transactions relative to the plants, properties, business and affairs of the Company, and all books, documents and vouchers relative to the plants, properties, business and affairs of the Company shall at all reasonable times be open to the inspection of such reputable accountant or other agent as the Trustee may from time to time designate, and the Company will bear all expenses of such inspections made at intervals of not more than once every two years.

SECTION 8.11. Issue of Bonds Contrary to Indenture . The Company will not issue, negotiate, sell or dispose of any Bonds to an amount or in any manner or for any purpose contrary to the provisions of this Restated Indenture, according to the true intent and tenor hereof.

SECTION 8.12. Restrictions on Dividends . Other than dividends payable solely in shares of its common stock, the Company may declare and pay dividends in cash or property on any shares of its common stock only out of the unreserved and unrestricted retained earnings of the Company and shall not make any such declaration or payment when (a) the Company is insolvent, or (b) when the payment thereof would render the Company insolvent, or (c) an Event of Default exists or would exist immediately after giving effect to any such declaration or payment.

SECTION 8.13. Subsidiary Indebtedness . The Company will not sanction or permit the creation, issuance, assumption, guarantee or incurrence of any indebtedness by or of any Subsidiary (except indebtedness for current operating expenses and consumers deposits of such Subsidiary) unless at the time of the creation, issuance, assumption, guarantee or incurrence of any such indebtedness and after giving effect thereto and to application of the proceeds thereof, the sum of (a) the aggregate amount of all indebtedness secured by mortgages or liens permitted by Clauses (i) and (ii) of Section 8.04 plus (b) the aggregate amount of all indebtedness of Subsidiaries, shall not exceed ten percent (10%) of the net book value of all fixed assets of the Company determined as of the end of the fiscal year of the Company immediately preceding the date of creation, issuance, assumption, guarantee or incurrence of any such indebtedness.