Exhibit 4(a)(3)
NORTHWESTERN PUBLIC SERVICE COMPANY
33 Third Street S.E.
Huron, South Dakota 57350-1318
July 28, 1995
The Travelers Insurance Company
The Phoenix Insurance Company
The Travelers Indemnity Company
205 Columbus Boulevard
Hartford, CT 06183
Metropolitan Life Insurance Company
One Lincoln Centre, Suite 800
Oakbrook, IL 60181
The Chase Manhattan Bank (National
Association)
4 Chase MetroTech Center
3rd Floor
Brooklyn, NY 11245
Re: Northwestern Public Service Company - Consent to Amendment to
1940
Indenture and Agreement to Exchange Bonds
Ladies and Gentlemen:
We refer to:
(i) the Indenture dated August 1, 1940 (as the same has been amended
from time to time, the "1940 Indenture") by and between Northwestern Public
Service Company (the "Company") and The Chase Manhattan Bank (National
Association), successor to The Chase National Bank of the City of New York
(the "1940 Trustee"), and C. J. Heinzelmann, successor to Carl E. Buckley
(the 1940 Trustee and said C. J. Heinzelmann being hereinafter called the
"1940 Trustees");
(ii) the Supplemental Indenture dated November 1, 1989 by and between
the Company and the 1940 Trustees, pursuant to which the Company issued
$7,500,000 of its First Mortgage Bonds, 8.90% Series due 1999 (the "8.90%
Bonds") to Metropolitan Life Insurance Company ("Metropolitan Life");
(iii) the Supplemental Indenture dated July 15, 1991 by and
between the Company and the 1940 Trustees, pursuant to which the Company
issued $15,000,000 of its First Mortgage Bonds, 8.824% Series due 1998 (the
"8.824% Bonds"), $11,000,000 of which were issued to The Travelers
Insurance Company ("Travelers") and the remaining $4,000,000 of which were
issued to The Phoenix Insurance Company ("Phoenix");
(iv) the Supplemental Indenture dated September 1, 1992 by and between
the Company and the 1940 Trustees, pursuant to which the Company issued
$25,000,000 of its First Mortgage Bonds, 6.99% Series due 2002 (the "6.99%
Bonds"), $22,000,000 of which were issued to Travelers and the remaining
$3,000,000 of which were issued to The Travelers Indemnity Company
("Indemnity"); and
(v) the Supplemental Indenture dated August 15, 1993 by and between
the Company and the 1940 Trustees, pursuant to which the Company issued
$55,000,000 of its First Mortgage Bonds, 7% Series due 2023 (the "7%
Bonds") to The Chase Manhattan Bank (National Association), as Trustee (the
"1993 Trustee") under the General Mortgage Indenture and Deed of Trust
dated as of August 1, 1993 (the "1993 Indenture") by and between the
Company and the 1993 Trustee.
Unless otherwise defined herein, the terms defined in the 1940
Indenture shall be used herein as therein defined.
As of the date of this letter, the only Bonds outstanding under the
1940 Indenture are the 8.90% Bonds, the 8.824% Bonds, the 6.99% Bonds and
the 7% Bonds, and the only holders of the Bonds are Metropolitan Life,
Travelers, Phoenix, Indemnity and the 1993 Trustee (collectively, the
"Bondholders").
The Company has advised the Bondholders that it desires to enter into
a Supplemental Indenture with the 1940 Trustees pursuant to which the
Company would issue up to $75,000,000 of Bonds (the "New 1940 Bonds") to
the 1993 Trustee to be used as "Pledged Bonds" under the 1993 Indenture for
purposes of issuing to the public a like amount of bonds ("New Mortgage
Bonds") under the 1993 Indenture (the "Public Offering"). At present, the
Company is not able to issue the full amount of New 1940 Bonds under the
1940 Indenture, because of (a) the limitation in Section 3 of Article II of
the 1940 Indenture that it may issue Bonds pursuant to such Section only to
the extent in principal amount of sixty percent (60%) of all "net
expenditures" (as defined in such Section), and (b) the prohibition in
Section 3 of Article II of the 1940 Indenture on using as the basis for the
issuance of Bonds any expenditures for property which has previously been
used by the Company to satisfy its maintenance and renewal fund obligations
under Article VII of the 1940 Indenture.
The undersigned Bondholders have agreed (a) to consent to the
amendment of Section 3 of Article II to the 1940 Indenture (i) to increase
the percentage stated therein from sixty percent (60%) to seventy-five
percent (75%), and (ii) to eliminate the restriction regarding the use of
expenditures for property that has been used to satisfy the Company's
obligations under Article VII of the 1940 Indenture, pursuant to a
Supplemental Indenture to the 1940 Indenture in substantially the form of
Exhibit A attached hereto, and (b) in the case of Metropolitan Life,
Travelers, Phoenix and Indemnity (collectively, the "Exchanging
Bondholders"), to exchange the Bonds held by each of them for bonds of like
tenor to be issued pursuant to a Supplemental Indenture to the 1993
Indenture in substantially the form of Exhibit B-1, Exhibit B-2 or Exhibit
B-3 (as applicable), in each case so long as the Company agrees to the
conditions and other provisions set forth herein.
1. Accordingly, the Company and the undersigned Bondholders
(including the 1993 Trustee) hereby agree as follows:
(a) The actions set forth in clause (b) of this Paragraph 1
shall be effective as if the same had taken place at a meeting of
Bondholders pursuant to Article XVIII (Meetings of Bondholders) of the
1940 Indenture (which provision was added to the 1940 Indenture by the
Supplemental Indenture dated October 1, 1946), and the undersigned
Bondholders hereby waive any and all notice of a meeting of the
Bondholders provided for in said Article XVIII; and
(b) The undersigned Bondholders hereby consent to the execution
by the Company and the 1940 Trustees of the Supplemental Indenture to
the 1940 Indenture in substantially the form of Exhibit A attached
hereto, and the recording and filing thereof in the various
jurisdictions in which the 1940 Indenture is recorded or filed.
2. The Company and the Exchanging Bondholders hereby agree as
follows:
(a) On a date not later than the last to occur of September 1,
1995 or the date of the Public Offering, the Company will issue:
(i) to Metropolitan Life, and Metropolitan Life will
accept, one or more bonds in the aggregate principal amount of
$7,500,000 in exchange for all of the issued and outstanding
8.90% Bonds, which bonds shall bear interest at a rate of 8.90%
per annum, shall mature on November 1, 1999, and shall be issued
pursuant to a Supplemental Indenture to the 1993 Indenture in
substantially the form of Exhibit B-1 attached hereto (as the
same may be modified by mutual agreement of the Company and
Metropolitan Life) and afforded the benefits set forth therein;
(ii) to Travelers, and Travelers will accept, one or
more bonds in the aggregate principal amount of $11,000,000 in
exchange for a like amount of 8.824% Bonds held by it, and to
Phoenix, and Phoenix will accept, one or more bonds in the
aggregate principal amount of $4,000,000 in exchange for a like
amount of 8.824% Bonds held by it, in each case which bonds shall
bear interest at a rate of 8.824% per annum, shall mature on July
15, 1998, and shall be issued pursuant to a Supplemental
Indenture to the 1993 Indenture in substantially the form of
Exhibit B-2 attached hereto (as the same may be modified by
mutual agreement of the Company, Travelers and Phoenix) and
afforded the benefits set forth therein; and
(iii) to Travelers, and Travelers will accept, one
or more bonds in the aggregate principal amount of $22,000,000 in
exchange for a like amount of 6.99% Bonds held by it, and to
Indemnity, and Indemnity will accept, one or more bonds in the
aggregate principal amount of $3,000,000 in exchange for a like
amount of 6.99% Bonds held by it, in each case which bonds shall
bear interest at a rate of 6.99% per annum, shall mature on
September 1, 2002, and shall be issued pursuant to a Supplemental
Indenture to the 1993 Indenture in substantially the form of
Exhibit B-3 attached hereto (as the same may be modified by
mutual agreement of the Company, Travelers and Indemnity) and
afforded the benefits set forth therein.
The bonds to be issued under the 1993 Indenture and the Supplemental
Indentures thereto pursuant to this clause (a) are referred to herein
as the "Exchanged Bonds."
(b) At the time of the issue of the Exchanged Bonds pursuant to
clause (a) of this Paragraph 2, each of the Exchanging Bondholders
will surrender their respective Bonds in exchange for the Exchanged
Bonds (which shall be stated to accrue interest from the date of the
last interest payment date of the Bonds to be exchanged for the
Exchanged Bonds), subject to satisfaction of the following conditions:
(i) Each Exchanging Bondholder shall have received an
opinion of counsel from Schiff Hardin & Waite in substantially
the form (mutatis mutandis) of the opinion delivered pursuant to
Paragraph 9(b) (or in the case of the Exchanged Bonds issued in
exchange for the 8.90% Bonds, Paragraph 10(b)) of the Bond
Purchase Agreements pursuant to which the Bonds were issued to
such Exchanging Bondholder;
(ii) Each Exchanging Bondholder shall have received an
opinion of counsel from local counsel in the States of South
Dakota and Nebraska in substantially the form (mutatis mutandis)
of the opinions delivered pursuant to Paragraph 9(c) (or in the
case of the Exchanged Bonds issued in exchange for the 8.90%
Bonds, Paragraph 10(c)) of the Bond Purchase Agreements pursuant
to which the Bonds were issued to such Exchanging Bondholder;
(iii) Each Exchanging Bondholder shall have
received an officer's certificate in substantially the form
(mutatis mutandis) of the officer's certificate delivered
pursuant to Paragraph 9(d) (or in the case of the Exchanged Bonds
issued in exchange for the 8.90% Bonds, Paragraph 10(d)) of the
Bond Purchase Agreements pursuant to which the Bonds were issued
to such Exchanging Bondholder, which officer's certificate shall
also include a representation by the Company to the effect that
the issuance of the Exchanged Bonds and the compliance by the
Company with the provisions thereof will not involve any
prohibited transaction within the meaning of ERISA or Section
4975 of the Internal Revenue Code;
(iv) Each Exchanging Bondholder shall be satisfied with
the proceedings taken on or before the date of the exchange in
connection with the transactions contemplated by this Paragraph
2, and with the form and substance of all instruments applicable
to the issuance of the Exchanged Bonds;
(v) The exchange shall, on the date of the exchange,
be permitted by the laws and regulations of all jurisdictions to
which each Exchanging Bondholder is then subject, and each
Exchanging Bondholder shall have received such factual
certificates, signed by officers of the Company, or such other
evidence as it may request to establish compliance with this
condition; and
(vi) The obligation of each Exchanging Bondholder to
surrender its respective Bonds is subject to the surrender by
each of the other Exchanging Bondholders of their Bonds.
(c) Concurrently with the issuance of the Exchanged Bonds in
accordance with clause (a) of this Paragraph 2 and the surrender of
the Bonds in accordance with clause (b) of this Paragraph 2, the
Company will deliver to the 1993 Trustee the "Company Order" and the
other documents and instruments referred to in Section 7.07 of the
1993 Indenture for purposes of causing the 1993 Trustee to surrender
for cancellation to the 1940 Trustees all of the Pledged Bonds
(including the 7% Bonds and the New 1940 Bonds) then held by the 1993
Trustee.
(d) Promptly following the surrender by the 1993 Trustee of the
Pledged Bonds in accordance with clause (c) of this Paragraph 2, the
Company will deliver (i) to the 1940 Trustees the request of the
Company and the other documents and instruments referred to in Article
XII of the 1940 Indenture for purposes of causing the 1940 Trustees to
cancel and discharge the lien of the 1940 Indenture as provided for in
said Article XII, and (ii) to the Exchanging Bondholders a certificate
to the effect that the 1940 Mortgage has been cancelled and
discharged, together with an opinion of counsel from Schiff Hardin &
Waite to the same effect.
3. As further consideration for the agreement of the Exchanging
Bondholders to the consent to the amendment to the 1940 Indenture, the
exchange of the Bonds for the Exchanged Bonds and the other matters
provided for herein, the Company agrees that each Exchanging Bondholder (or
its respective successors or assigns), with respect to the Exchanged Bonds
then held by it, shall have the following rights, in addition to the rights
provided for in the 1993 Indenture and the Supplemental Indentures pursuant
to which the Exchanged Bonds were issued:
(a) If, at any time subsequent to the earlier of (i) the date
which is 120 days following the issuance of New Mortgage Bonds
pursuant to the S-3 Registration Statement filed by the Company on
June 21, 1995, as the same may be amended or supplemented, or (ii)
January 1, 1996, an Exchanging Bondholder gives written notice to the
Company (specifying that it is being given pursuant to this clause
(a)) requesting the Company to file a registration statement to
register under the 1933 Act all (but not less than all) of a series of
Exchanged Bonds owned by the requesting person (provided, however,
that (1) in the event that such request is made with respect to the
Exchanged Bonds to be issued in exchange for the 8.824% Bonds, such
request shall be submitted by both Travelers and Phoenix, and (2) in
the event that such request is made with respect to the Exchanged
Bonds to be issued in exchange for the 6.99% Bonds, such request shall
be submitted by both Travelers and Indemnity), then the Company shall
promptly notify each of the other Exchanging Bondholders of such
request. Within 15 days after receipt by any such other Exchanging
Bondholder of notice of such request, it may notify the Company that
it too requests that all (but not less than all) of a series of
Exchanged Bonds owned by such Exchanging Bondholder be included in
such registration (all of the Exchanging Bondholders who at that point
have requested the Company to include their Exchanged Bonds in the
registration being hereinafter referred to as the "Selling
Bondholders"); provided, however, that the failure by an Exchanging
Bondholder to make such a request shall not preclude such Exchanging
Bondholder from subsequently exercising its rights under this
Paragraph 3. The Company shall then use its best efforts to cause to
be registered under the 1933 Act all Exchanged Bonds that the Selling
Bondholders have so requested to be registered. Notwithstanding the
foregoing, the Company shall not be obligated to effect a registration
pursuant to this clause (a) during the period starting with the date
45 days prior to the Company's estimated date of filing of, a
registration statement pertaining to an underwritten public offering
of New Mortgage Bonds for the account of the Company, provided that
the Company is actively employing in good faith all reasonable efforts
to cause such registration statement to become effective and that the
Company's estimate of the date of filing such registration statement
is made in good faith. The Company shall be obligated to effect one
registration pursuant to this clause (a) for each series of Exchanged
Bonds. At any time prior to the effectiveness of the registration
statement, any request for registration under this clause (a) may be
withdrawn by a Selling Bondholder, whereupon, if such withdrawal
affects all of the Exchanged Bonds that were to be the subject of the
registration statement, the Company shall either not file or withdraw
the filing of the registration statement, as applicable, and such
withdrawal of the request for registration will not be deemed to have
been the exercise of the registration right granted in this clause
(a).
(b) Whenever under clause (a) of this Paragraph 3 the Company is
to use its best efforts to effect the registration of any Exchanged
Bonds, that shall require the Company to do the following:
(i) As expeditiously as reasonably possible (and in
any event within 30 days following the delivery to the Company of
the request by the first Selling Bondholder pursuant to clause
(a) of this Paragraph 3), prepare and file with the Securities
and Exchange Commission ("SEC," which term includes any successor
agency) a registration statement with respect to such Exchanged
Bonds, and use its best efforts to cause such registration
statement to become and remain effective under the 1933 Act,
except that the Company shall in no event be obligated to cause
any such registration to remain effective for more than nine
months.
(ii) As expeditiously as reasonably possible, prepare
and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with
the provisions of the 1933 Act with respect to the disposition of
all securities covered by such registration statement.
(iii) As expeditiously as reasonably possible,
furnish to each Selling Bondholder such numbers of the copies of
the prospectus used in connection with such registration
statement (including all preliminary prospectuses and the final
prospectus), and all amendments and supplements thereto, and such
other documents as they may reasonably request in order to
facilitate the distribution of the Exchanged Bonds owned by such
Selling Bondholder.
(iv) As expeditiously as reasonably possible, make a
commercially reasonable effort to register and qualify the
securities covered by such registration statement under such
securities or Blue Sky laws of such jurisdictions as shall be
reasonably appropriate or requested by each Selling Bondholder or
by the underwriter (if any) for the distribution of the
securities covered by the registration statement, except that the
Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general
consent to service of process in any such jurisdiction, and
except that (anything in this letter to the contrary
notwithstanding with respect to the bearing of expenses) if any
jurisdiction in which the Exchanged Bonds shall be qualified
shall require that expenses incurred in connection with the
registration or qualification of the Exchanged Bonds in that
jurisdiction be borne by those selling the Exchanged Bonds, then
such expenses shall be payable by the Selling Bondholders pro
rata in accordance with the principal amount of the Exchanged
Bonds being registered, to the extent required by such
jurisdiction.
(v) Advise each Selling Bondholder promptly after the
Company shall receive notice or obtain knowledge thereof of (1)
the issuance of any stop order by the SEC suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose, (2) any similar
action by any regulatory agency of competent jurisdiction under
the securities or Blue Sky laws of any jurisdiction, and in any
such case promptly make a commercially reasonable effort to
prevent the issuance of any stop order or the taking of any such
similar action or to obtain its withdrawal if such stop order
shall be issued or any such similar action shall be taken, and
(3) the happening of any event as a result of which the
prospectus included in such registration statement contains an
untrue statement of material fact or omits to state any fact
necessary to make the statements therein not misleading.
(vi) Furnish to each Selling Bondholder copies of all
documents proposed to be filed with respect to any amendment or
supplement to such registration statement or prospectus at a
reasonable time prior to such filing, and not file any such
amendment or supplement to which the Selling Bondholders of a
majority of the Exchanged Bonds covered by such registration
statement shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects
with the requirements of the 1933 Act or the rules and
regulations thereunder, unless in the opinion of counsel for the
Company the filing of such amendment or supplement is reasonably
necessary to protect the Company from any liabilities under any
applicable federal or state law and such filing will not violate
applicable law.
(vii) Furnish on the effective date of the
registration statement and, if such registration includes an
underwritten public offering, at the closing provided for in the
underwriting agreement: (1) an opinion, dated each such date, of
the counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to the
Selling Bondholders participating in such registration, stating
that such registration statement has become effective under the
1933 Act and that (A) to the best of such counsel's knowledge, no
stop order suspending the effectiveness thereof has been issued
and no proceedings for that purpose have been instituted or are
pending or contemplated under the 1933 Act, (B) the registration
statement, related prospectus and each amendment or supplement
thereto comply as to form in all material respects with the
requirements of the 1933 Act and the applicable rules and
regulations of the SEC thereunder (except that such counsel need
express no opinion as to financial statements and financial data
contained therein), (C) such counsel have no reason to believe
that the registration statement, the prospectus or any amendment
or supplement thereto contains any untrue statement of a material
fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in the light
of circumstances under which they were made, not misleading
(except that such counsel need express no belief as to the
financial statements and financial data contained therein, nor as
to any of the information provided by the Selling Bondholders
pursuant to clause (c) of this Paragraph 3), (D) the description
in the registration statement or prospectus or any amendment or
supplement thereto of all legal and governmental proceedings and
all contracts and other legal documents or instruments filed as
exhibits to the registration statement are accurate and fairly
present the information required to be shown, and (2) a letter
dated each such date, from the independent certified public
accountants of the Company, addressed to the underwriters, if
any, and to the Selling Bondholders participating in such
registration, covering such matters as such underwriters and such
Selling Bondholders may reasonably request, in which letter such
accountants shall state (without limiting the generality of the
foregoing) that they are independent certified public accountants
within the meaning of the 1933 Act and that in the opinion of
such accountants the financial statements and other financial
data of the Company included in the registration statement or the
prospectus or any amendment or supplement thereto comply in all
material respects with the applicable accounting requirements of
the 1933 Act and applicable rules and regulations thereunder.
(viii) Enter into such customary agreements and take
all such other actions as the Selling Bondholders that are
holders of a majority of the Exchanged Bonds covered by such
registration statement or the managing underwriters for such
registration, if any, may reasonably request in order to
facilitate the distribution of such Exchanged Bonds (including,
without limitation, to cause such Exchanged Bonds to be listed on
such securities exchange on which similar securities issued by
the Company are then listed, to cause such Exchanged Bonds to be
eligible for quotation and transaction reporting through an
automated inter-dealer quotation system operated by a national
securities association, and to provide a transfer agent and
registrar).
(ix) Make available for inspection by, and cause the
Company's officers, directors, employees and independent
accountants to supply to, any Selling Bondholder, any underwriter
participating in the distribution pursuant to such registration
statement, and any attorney, accountant or other agent for any
thereof, all financial and other records of the Company and all
information reasonable requested in connection with such
registration statement.
(x) Enter into an indemnity agreement pursuant to
which the Company agrees (to the extent permitted by law) to
indemnify and hold harmless each Selling Bondholder, each of its
directors, officers, employees and agents, each underwriter (if
any), each other person who participates in the offering of such
Exchanged Bonds, and each other person, if any, who controls
(within the meaning of the 1933 Act) such Selling Bondholder,
underwriter or participating person, against any losses, claims,
damages or liabilities, joint or several, to which such Selling
Bondholder, director, officer, employee, agent, underwriter,
participating person or controlling person may become subject
under the 1933 Act or any other statute or at common law, insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (A) any alleged
untrue statement of any material fact contained, on the effective
date thereof, in any registration statement under which such
Exchanged Bonds were registered under the 1933 Act, any
preliminary prospectus or final prospectus contained therein, or
any summary prospectus issued in connection with any Exchanged
Bonds being registered, or any amendment or supplement thereto,
or (B) any alleged omission to state in any such document a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse such
Selling Bondholders, director, officer, employee, agent,
underwriter, participating person or controlling person for any
legal or other expenses reasonably incurred by such Selling
Bondholder, director, officer, employee, agent, underwriter,
participating person or controlling person in connection with
investigating or defending any such loss, damage, liability or
action; provided, however, that the Company shall not be liable
to such Selling Bondholder, director, officer, employee, agent,
underwriter, participating person or controlling person in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any alleged untrue
statement or alleged omission made in such registration
statement, preliminary prospectus, final prospectus, summary
prospectus or amendment or supplement thereto in reliance upon
and in conformity with written information furnished to the
Company by such Selling Bondholder, specifically for use therein.
Such indemnity agreement shall contain customary provisions with
respect to the procedure to be followed in connection with the
assertion of any right to indemnification, as well as customary
provisions with respect to just and equitable contribution in the
event where any such indemnity is unavailable.
(c) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Paragraph 3 that each
Selling Bondholder shall furnish to the Company such information
regarding such Selling Bondholder, the Exchanged Bonds held by such
Selling Bondholder, and the intended method of disposition of such
Exchanged Bonds (which may, but need not, involve an underwritten
transaction) as the Company shall reasonably request and as shall be
required in connection with the action to be taken by the Company.
(d) All expenses incurred in connection with a registration
pursuant to clause (a) of this Paragraph 3 (excluding underwriters'
discounts and commissions (if any), fees of any counsel which the
Selling Bondholder may separately engage and expenses expressly
required by clause (b)(iv) of this Paragraph 3 to be paid by the
Selling Bondholders), including without limitation all registration
and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company, internal expenses of the
Company (including, without limitation, salaries of officers and
employees) and listing fees shall be borne by the Company.
(e) In the event that, for any reason other than the failure by
a Selling Bondholder to comply with the provisions of this Paragraph
3, the registration statement provided for in clause (a) of this
Paragraph 3 is not declared effective by the SEC within 90 days
following the filing thereof pursuant to clause (b)(i) of this
Paragraph 3, the Company shall be obligated to pay to each Selling
Bondholder a fee equal to fifteen basis points (.15%) per annum
(calculated on the basis of a 360-day year) of the principal amount of
the Exchanged Bonds owned by such Selling Bondholder that are subject
to such registration statement for the period beginning on the 90th
day following the filing of such registration statement and ending on
the earlier of (i) the date that such registration statement is
declared effective by the SEC, or (ii) the date on which the Exchanged
Bonds with respect to which the fee applies are paid in full by the
Company. The fee provided for under this clause (e) shall be payable
semi-annually in arrears on the date on which interest on the
Exchanged Bonds is due and payable and on the last day of the period
referred to in the preceding sentence.
(f) For purposes of this Paragraph 3: (i) the term "1933 Act"
means the Securities Act of 1933, as amended; and (ii) the terms
"register," "registered" and "registration" refer to a registration
effected by filing a registration statement in compliance with the
1933 Act (a "registration statement") and such registration statement
becoming effective under the 1933 Act.
In order to induce the Bondholders to execute and deliver this letter,
the Company represents and warrants to the Bondholders that:
(a) This letter is the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except as may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors rights in general and by
general principles of equity;
(b) No "default" or "event of default" (as such terms are
defined in the 1940 Indenture) or "Event of Default" (as such term is
defined in the 1993 Indenture) exists, in each case both before and
after giving effect to the consents and other matters contemplated
hereby; and
(c) Upon the discharge of the lien of the 1940 Indenture in
accordance with clause (d) of Paragraph 2, the lien of the 1993
Indenture on the property formerly subject to the lien of the 1940
Indenture, to the extent the same is part of the "Mortgaged Property"
under the 1993 Indenture, will be subject to no lien prior to the lien
of the 1993 Indenture except "Permitted Liens" under the 1993
Indenture and liens of the character permitted to exist or to be
created under Section 6.06 of the 1993 Indenture.
Nothing contained in this letter shall affect in any manner the
Company's obligations under the Bond Purchase Agreements pursuant to which
the 8.90% Bonds, the 8.824% Bonds or the 6.99% Bonds, respectively, were
issued, except to the extent that any such obligations relate to the "New
Bonds" or the "Indenture" (as such terms are defined in such Bond Purchase
Agreements), in which case such obligations shall relate to the applicable
series of Exchanged Bonds and the 1993 Indenture (mutatis mutandis),
respectively, and such Bond Purchase Agreements shall otherwise remain in
full force and effect.
This letter shall be construed and enforced as an agreement in
accordance with, and the rights of the parties shall be governed by, the
law of the State of New York (without giving effect to principles of
conflicts of law).
This letter may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed
to be an original and all of which taken together shall constitute but one
and the same instrument.
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same
to the Company, whereupon this letter shall become a binding agreement
among you and the Company.
Very truly yours,
NORTHWESTERN PUBLIC SERVICE COMPANY
By:
Title:
The foregoing letter is
hereby accepted as of the
date first above written.
METROPOLITAN LIFE INSURANCE COMPANY
By:
Title:
THE TRAVELERS INSURANCE COMPANY
By:
Title:
THE PHOENIX INSURANCE COMPANY
By:
Title:
THE TRAVELERS INDEMNITY COMPANY
By:
Title:
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
in its capacity as Trustee under the 1993 Indenture
By:
Title:
EXHIBIT A
TO CONSENT
Supplemental Indenture, dated the _____ day of July, nineteen hundred
and ninety-five (1995), made by and between Northwestern Public Service
Company, a corporation organized and existing under the laws of the State
of Delaware (hereinafter called the "Company"), party of the first part,
and The Chase Manhattan Bank (National Association), a national banking
association organized and existing under the laws of the United States of
America and having its principal office or place of business in the Borough
of Manhattan, The City of New York, State of New York, successor to The
Chase National Bank of the City of New York (hereinafter called the
"Trustee"), and C. J. Heinzelmann, of Nassau County, New York, successor to
Carl E. Buckley (the Trustee and said C. J. Heinzelmann being hereinafter
called the "Trustees," which term where the context requires may also
designate their respective predecessors in trust, the post office address
of the Trustees being Corporate Trust Administration Division, 4 Chase
MetroTech Center - 3rd Floor, Brooklyn, New York 11245), as Trustees under
the Indenture dated August 1, 1940, hereinafter mentioned, parties of the
second part.
Whereas the Company has heretofore executed and delivered its
Indenture (hereinafter referred to as the "Original Indenture"), dated
August 1, 1940, to the Trustees for the security of the bonds of the
Company issued and to be issued thereunder; and
Whereas the Company, from time to time, has heretofore duly made and
delivered to the Trustees certain indentures supplemental to the Original
Indenture, including supplemental indentures dated January 15, 1941, August
18, 1945, September 23, 1946, October 1, 1946, July 24, 1947, June 1, 1948,
September 1, 1948, June 1, 1949, August 16, 1950, March 1, 1952, May 1,
1953, February 1, 1955, August 27, 1955, October 1, 1956, July 1, 1957,
August 1, 1959, July 1, 1961, July 1, 1966, September 1, 1970, August 1,
1972, July 1, 1973, November 14, 1974, May 1, 1975, June 1, 1977, July 1,
1978, December 1, 1978, May 6, 1987, November 1, 1989, July 15, 1991,
November 15, 1991, September 1, 1992 and August 15, 1993 (the Original
Indenture as supplemented and amended by the aforementioned supplemental
indentures and by this Supplemental Indenture being hereinafter referred to
as the "Indenture"); and
Whereas pursuant to the terms and provisions of the Original Indenture
and a Supplemental Indenture dated November 1, 1989, the Company created a
new series of bonds, to be issued under the Original Indenture, and to be
known as First Mortgage Bonds, 8.90% Series due 1999, of which Bonds of the
8.90% Series there are issued and outstanding, as of the date of this
Supplemental Indenture, $7,500,000 principal amount; and
Whereas pursuant to the terms and provisions of the Original Indenture
and a Supplemental Indenture dated July 15, 1991, the Company created a new
series of bonds, to be issued under the Original Indenture, and to be known
as First Mortgage Bonds, 8.824% Series due 1998, of which Bonds of the
8.824% Series there are issued and outstanding, as of the date of this
Supplemental Indenture, $15,000,000 principal amount; and
Whereas pursuant to the terms and provisions of the Original Indenture
and a Supplemental Indenture dated September 1, 1992, the Company created a
new series of Bonds, to be issued under the Original Indenture, and to be
known as First Mortgage Bonds, 6.99% Series due 2002, of which Bonds of the
6.99% Series there are issued and outstanding, as of the date of this
Supplemental Indenture, $25,000,000 principal amount; and
Whereas pursuant to the terms and provisions of the Original Indenture
and a Supplemental Indenture dated August 15, 1993, the Company created a
new series of Bonds, to be issued under the Original Indenture, and to be
known as First Mortgage Bonds, 7% Series due 2023, of which Bonds of the 7%
Series there are issued and outstanding, as of the date of this
Supplemental Indenture, $55,000,000 principal amount; and
Whereas the Company desires to modify the Indenture in certain
respects; and
Whereas the holders of all of the Bonds issued and outstanding under
the Original Indenture as of the date hereof (being the Bonds of the 8.90%
Series, the Bonds of the 8.824% Series, the Bonds of the 6.99% Series and
the Bonds of the 7% Series) have consented to the modifications reflected
herein, and to the execution by the Company and the Trustees of this
Supplemental Indenture; and
Whereas the Company, in the exercise of the powers and authority
conferred upon and reserved to it under the provisions of the Original
Indenture, and pursuant to appropriate resolutions of its Board of
Directors, has duly resolved and determined to make, execute and deliver to
the Trustees a Supplemental Indenture in the form hereof for the purposes
herein provided; and
Whereas all conditions and requirements necessary to make this
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;
Now, Therefore, This Indenture Witnesseth:
That Northwestern Public Service Company, in consideration of the
premises and of One Dollar to it duly paid by the Trustees at or before the
ensealing and delivery of these presents, the receipt whereof is hereby
acknowledged, hereby covenants and agrees to and with the Trustees and
their successors in the trust under the Indenture, for the benefit of those
who shall hold the bonds and coupons, or any of them, to be issued
thereunder as hereinafter amended, as follows:
Article I
Amendment of Original Indenture
Section 1. Section 3 of Article II of the Indenture (referred to on
pages 17-26 of the Supplemental Indenture dated October 1, 1946) is hereby
amended by deleting the figure "sixty per centum (60%)" and inserting in
lieu thereof the figure "seventy-five per centum (75%)" in both places
where it appears.
Section 2. Section 3 of Article II of the Indenture (referred to on
pages 17-26 of the Supplemental Indenture dated October 1, 1946) is hereby
amended further amended by:
(a) Deleting the phrase "or which shall have been certified or
used to comply with any requirement of Article VII of this Indenture"
in the first paragraph thereof;
(b) Deleting the phrase "the greater of (a) the aggregate amount
of such gross expenditures, if any, certified to the Trustee for or
during such period pursuant to the provisions of Section 1 of Article
VII hereof as expended for the purposes stated in sub-paragraph (b) of
said Section or (b)" in the first paragraph of the definition of "net
expenditures" contained therein;
(c) Deleting the phrase "(1) were certified to the Trustee
pursuant to the provisions of Section 1 of Article VII hereof as
expended by the Company for the purpose stated in sub-paragraph (c) of
Section 1 of Article VII hereof, (2) were paid to the Trustee to
comply with the requirements of Section 1 of Article VII hereof, and
(3)" in the first paragraph of the definition of "net expenditures"
contained therein;
(d) Deleting the phrase "or the certification of net
expenditures to the Trustee under the provisions of Section 2 of
Article VII of this Indenture" in the second paragraph of the
definition of "net expenditures" contained therein;
(e) Deleting clauses (3), (4)(b) and (4)(c) of sub-paragraph (b)
thereof (referred to on page 24 of the Supplemental Indenture dated
October 1, 1946); and
(f) Deleting the phrase "or has been certified or used to comply
with any requirement of Article VII of this Indenture" in
sub-paragraph (b) thereof (referred to on page 25 of the Supplemental
Indenture dated October 1, 1946).
Article II
The Trustees
The Trustees hereby accept the trusts hereby declared and provided and
agree to perform the same upon the terms and conditions in the Original
Indenture set forth and upon the following terms and conditions:
The Trustees shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or
the due execution hereof by the Company or for or in respect of the
recitals contained herein, all of which recitals are made by the Company
solely. In general each and every term and condition contained in Article
XV of the Original Indenture, as amended by Section 15 of Article IV of the
Supplemental Indenture dated October 1, 1946, shall apply to this
Supplemental Indenture with the same force and effect as if the same were
herein set forth in full, with such omissions, variations and modifications
thereof as may be appropriate to make the same conform to this Supplemental
Indenture.
In Witness Whereof, said Northwestern Public Service Company has
caused this instrument to be executed in its corporate name by its
President or one of its Vice Presidents, and its corporate seal to be
hereunto affixed and to be attested by its Corporate Secretary or an
Assistant Secretary, and said The Chase Manhattan Bank (National
Association), to evidence its acceptance of the trust hereby created, has
caused this instrument to be executed in its corporate name by its
President or one of its Second Vice Presidents and its corporate seal to be
hereunto affixed and to be attested by one of its Assistant Secretaries,
and said C.J. Heinzelmann, to evidence his acceptance of the trust hereby
created, has signed this instrument, in several counterparts, all as of the
day and year first above written.
NORTHWESTERN PUBLIC SERVICE
By
(Title)
ATTEST:
By
(Title)
Executed by Northwestern
Public Service Company
in the presence of:
Witnesses
(BANK SEAL) THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION)
By
(Title)
ATTEST:
By
Assistant Secretary
Executed by the Chase
Manahttan Bank (National
Association) in the presence of:
Witnesses
By
C. J. Heinzelmann
Executed by C. J.
Heinzelmann in
the presence of:
Witnesses
State Of South Dakota )
) SS
County Of Beadle )
On this _____th day of July, in the year 1995, before me, ___________,
a Notary Public in and for said County and State, personally appeared
__________ and __________, known to me to be the _______________ and the
_______________, respectively, of Northwestern Public Service Company, a
Delaware corporation, and one of the corporations that is described in and
that executed the within instrument, and to be officers of said corporation
authorized to execute said instrument on its behalf, and acknowledged to me
that said corporation executed the same, and further acknowledged to me
that they had executed said instrument as such officers and on behalf of
said corporation, thereunto duly authorized.
In Witness Whereof, I have hereunto set my hand and affixed my seal of
office this _____th day of July, 1995.
(Notarial Seal)
Notary Public
[Name]
Notary Public,
Beadle County, S.D.
My Commission
expires __________, _____
State Of South Dakota )
) SS
County Of Beadle )
On this _____th day of July, in the year 1995, before me, ___________,
a Notary Public in and for said County and State, personally appeared
__________ and __________, known to me to be the _______________ and the
_______________, respectively, of the within named Northwestern Public
Service Company, a Delaware corporation, and to be the same persons whose
names are signed to the foregoing instrument as such _______________ and
such _______________, respectively, of said corporation, and acknowledged
said instrument to be the voluntary act and deed of said corporation, and
further acknowledged that they had signed, sealed and delivered said
instrument as their voluntary act and deed as the _______________ and the
_______________, respectively, of said corporation and that the seal of
said corporation affixed to said instrument is the common seal of said
corporation.
In Witness Whereof, I have hereunto set my hand and affixed my seal of
office this _____th day of July, 1995.
(Notarial Seal)
Notary Public
[Name]
Notary Public,
Beadle County, S.D.
My Commission
expires __________, ____
State Of New York )
) SS
County Of Kings )
On this _____th day of July, in the year 1995, before me, __________,
a Notary Public in and for said County and State, personally appeared
__________ and __________ to me personally known and known to me to be a
_______________ and an Assistant Secretary, respectively, of THE CHASE
MANHATTAN BANK (National Association), a national banking association
organized and existing under the laws of the United States of America and
one of the corporations described in and which executed the foregoing
instrument, who, being by me severally duly sworn, each for himself did
depose, and say and acknowledge that he, said __________, resides at
_________________, and is a _______________ of said Bank and that she, said
__________, resides at _______________, and is an Assistant Secretary of
said Bank; that they respectively know the seal of said Bank and that the
seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said Bank, and that they,
respectively, signed their names thereto by like order; and that said
instrument is the voluntary act and deed of said Bank, by it voluntarily
executed.
In Witness Whereof, I have hereunto subscribed my name and affixed my
official seal this _____th day of July, 1995.
(Notarial Seal)
Notary Public
Notary Public, State of New York
No. __________
Qualified in Kings County
Commission expires __________, ____
State Of New York )
) SS
County Of New York )
On this _____th day of July, in the year 1995, before me, __________,
a Notary Public in and for said County and State, personally appeared C. J.
HEINZELMANN, to me personally known and known by me to be the person
described in and who executed the foregoing instrument, who, being by me
duly sworn, did depose, say and acknowledge that he resides at 15 Boylston
Street, Garden City, New York, and that said instrument is his voluntary
act and deed, by him voluntarily executed.
In Witness Whereof, I have hereunto subscribed my name and affixed my
official seal this _____th day of July, 1995.
(Notarial Seal)
Notary Public
Notary Public, State of New York
No. __________
Qualified in New York County
Commission expires __________, _____
ACKNOWLEDGMENT
The undersigned acknowledges the delivery to it and the receipt by it
of a full, true and complete copy of the foregoing Supplemental Indenture
dated July, 1995.
Northwestern Public Service Company
[Title]
(Corporate Seal)
By
[Title]
EXHIBIT B-1
TO CONSENT
Supplemental Indenture, dated as of __________, 1995 (the
"Supplemental Indenture"), made by and between Northwestern Public Service
Company, a corporation organized and existing under the laws of the State
of Delaware (the "Company"), the post office address of which is 33 Third
Street, S.E., Huron, South Dakota 57350, and The Chase Manhattan Bank
(National Association), a national banking association organized and
existing under the laws of the United States of America (the "Trustee"), as
Trustee under the General Mortgage Indenture and Deed of Trust dated as of
August 1, 1993, hereinafter mentioned, the post office address of which is
4 Chase MetroTech Center, 3rd Floor, Brooklyn, New York 11245;
Whereas, the Company has heretofore executed and delivered its General
Mortgage Indenture and Deed of Trust dated as of August 1, 1993 (the
"Original Indenture"), to the Trustee, for the security of the Bonds of the
Company issued and to be issued thereunder (the "Bonds"); and
Whereas, the Company has heretofore executed and delivered to the
Trustee a certain indenture supplemental to the Original Indenture dated
August 15, 1993 (the Original Indenture, as supplemented and amended by the
aforementioned supplemental indenture and by this Supplemental Indenture
being hereinafter referred to as the "Indenture"); and
Whereas, the Company desires to create a new series of Bonds to be
issued under the Indenture, to be known as New Mortgage Bonds, 8.90% Series
due 1999 (the "New Mortgage Bonds of the 8.90% Series"), which New Mortgage
Bonds of the 8.90% Series are to be issued in exchange for certain other
bonds of the Company of like tenor and amount that were issued pursuant to
a supplemental indenture to the Company's Indenture dated August 1, 1940;
and
Whereas, the Company, in the exercise of the powers and authority
conferred upon and reserved to it under the provisions of the Indenture,
and pursuant to appropriate resolutions of the Board of Directors, has duly
resolved and determined to make, execute and deliver to the Trustee a
Supplemental Indenture in the form hereof for the purposes herein provided;
and
Whereas, all conditions and requirements necessary to make this
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;
Now, Therefore, This Indenture Witnesseth:
That Northwestern Public Service Company, in consideration of the
exchange referred to above and ownership from time to time of the Bonds and
the service by the Trustee, and its successors, under the Indenture 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,
hereby covenants and agrees to and with the Trustee and its successors in
the trust under the Indenture, for the benefit of those who shall hold the
Bonds as follows:
Article I
Description Of Bonds Of The 8.90% Series Due 1999
Section 1. The Company hereby creates a new series of Bonds to be
known as "New Mortgage Bonds, 8.90% Series due 1999." The New Mortgage
Bonds of the 8.90% Series shall be executed, authenticated and delivered in
accordance with the provisions of, and shall in all respects be subject to,
all of the terms, conditions and covenants of the Indenture, as
supplemented and modified.
The commencement of the first interest period for the New Mortgage
Bonds of the 8.90% Series shall be May 1, 1995. The New Mortgage Bonds of
the 8.90% Series shall mature November 1, 1999, and shall bear interest at
the rate of 8.90% per annum, payable semi-annually on the first day of May
and the first day of November in each year; provided, however, that if the
Company shall default in the payment of principal of, premium, if any, or
interest on, any New Mortgage Bond of the 8.90% Series when the same shall
have become due and such default shall continue for more than five days,
then the Company covenants and agrees that it will pay to the holder
thereof, to the extent permitted by applicable law, interest on the
outstanding principal amount of such New Bond at the rate of 9.90% per
annum commencing on the due date of such payment and continuing until such
overdue amount is paid. The person in whose name any of the New Mortgage
Bonds of the 8.90% Series are registered at the close of business on any
record date (as hereinafter defined) with respect to any interest payment
date shall be entitled to receive the interest payable on such interest
payment date notwithstanding the cancellation of such New Mortgage Bonds of
the 8.90% Series upon any transfer or exchange subsequent to the record
date and prior to such interest payment date; provided, however, that if
and to the extent the Company shall default in the payment of the interest
due on such interest payment date, such defaulted interest shall be paid as
provided in Section 3.07(b) of the Indenture.
The term "record date" as used in this Section with respect to any
interest payment date shall mean April 15 or October 15, as the case may
be, next preceding the semi-annual interest payment date, or, if such April
15 or October 15 shall be a legal holiday or a day on which banking
institutions in the Borough of Manhattan, The City of New York, State of
New York, are authorized by law to close, then the next preceding day which
shall not be a legal holiday or a day on which such institutions are so
authorized to close.
Section 2. The New Mortgage Bonds of the 8.90% Series shall be issued
only as registered Bonds without coupons of the denomination of $1,000, or
any integral multiple of $1,000, appropriately numbered. The New Mortgage
Bonds of the 8.90% Series may be exchanged, upon surrender thereof, at the
agency of the Company in the Borough of Manhattan, The City of New York,
State of New York, for one or more new New Mortgage Bonds of the 8.90%
Series of other authorized denominations, for the same aggregate principal
amount, subject to the terms and conditions set forth in the Indenture.
New Mortgage Bonds of the 8.90% Series may be exchanged or transferred
without expense to the registered owner thereof except that any taxes or
other governmental charges required to be paid with respect to such
transfer or exchange shall be paid by the registered owner requesting such
transfer or exchange as a condition precedent to the exercise of such
privilege.
Section 3. The New Mortgage Bonds of the 8.90% Series and the
Trustee's Certificate of Authentication shall be substantially in the
following forms respectively:
[Form Of Bond Of The 8.90% Series Due 1999]
Northwestern Public Service Company
(Incorporated under the laws of the State of South Dakota)
New Mortgage Bond, 8.90% Series Due 1999
No. R- $______________
Northwestern Public Service Company, a corporation organized and
existing under the laws of the State of Delaware (the "Company", which term
shall include any successor corporation as defined in the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________ or registered assigns, the sum of __________ dollars on the
first day of November, 1999, in any coin or currency of the United States
of America which at the time of payment is legal tender for public and
private debts, and to pay interest thereon in like coin or currency from
May 1, 1995, payable semi-annually, on the first days of May and November
in each year, at the rate of 8.90% per annum, until the Company's
obligation with respect to the payment of such principal shall be
discharged as provided in the Indenture hereinafter mentioned; provided,
however, that if the Company shall default in the payment of principal of,
premium, if any, or interest on, this Bond when the same shall have become
due and such default shall continue for more than five days, then the
Company covenants and agrees that it will pay to the holder hereof, to the
extent permitted by applicable law, interest on the outstanding principal
amount of this Bond at the rate of 9.90% per annum commencing on the due
date of such payment and continuing until such overdue amount is paid. The
interest so payable on any May 1 or November 1 will, subject to certain
exceptions provided in the Supplemental Indenture dated as of __________,
1995, be paid to the person in whose name this Bond is registered at the
close of business on the immediately preceding April 15 or October 15, as
the case may be. Both principal of, and interest on, this Bond are payable
at the agency of the Company in the Borough of Manhattan, The City of New
York, State of New York.
This Bond shall not be entitled to any benefit under the Indenture or
any indenture supplemental thereto, or become valid or obligatory for any
purpose, until the form of certificate endorsed hereon shall have been
signed by or on behalf of The Chase Manhattan Bank (National Association),
the Trustee under the Indenture, or a successor trustee thereto under the
Indenture, or by an authenticating agent duly appointed by the Trustee in
accordance with the terms of the Indenture.
The provisions of this New Mortgage Bond are continued on the reverse
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
In Witness Whereof, Northwestern Public Service Company has caused
this New Mortgage Bond to be signed (manually or by facsimile signature) in
its name by an Authorized Executive Officer, as defined in the Indenture,
and its corporate seal (or a facsimile thereof) to be hereto affixed and
attested (manually or by facsimile signature) by an Authorized Executive
Officer, as defined in the Indenture.
Dated: Northwestern Public Service Company
By
Authorized Executive Officer
ATTEST:
Authorized Executive Officer
[Form of Trustee's Certificate]
This is one of the Bonds of the series designated therein referred to
in the within-mentioned Indenture and Supplemental Indenture dated as of
_________, 1995.
The Chase Manhattan Bank (National
Association), as Trustee
By
Authorized Officer
[FORM OF REVERSE OF BOND]
This New Mortgage Bond of the 8.90% Series is one of a duly authorized
issue of Bonds of the Company (the "Bonds"), of the series hereinafter
specified, all issued and to be issued under and equally secured by a
General Mortgage Indenture and Deed of Trust (the "Indenture"), dated as of
August 1, 1993, executed by the Company to The Chase Manhattan Bank
(National Association) (the "Trustee"), as Trustee, to which Indenture and
all indentures supplemental thereto reference is hereby made for a
description to the properties mortgaged and pledged, the nature and extent
of the security, the rights of registered owners of the Bonds and of the
Trustee in respect thereof, and the terms and conditions upon which the
Bonds are, and are to be, secured. The Bonds may be issued in series, for
various principal sums, may mature at different times, may bear interest at
different rates and may otherwise vary as provided in the Indenture. This
New Mortgage Bond of the 8.90% Series is one of a series designated as the
"New Mortgage Bonds, 8.90% Series Due 1999" (the "New Mortgage Bonds of the
8.90% Series") of the Company issued under and secured by the Indenture and
described in the supplemental indenture dated as of __________, 1995 (the
"Supplemental Indenture dated as of __________, 1995"), between the Company
and the Trustee, supplemental to the Indenture.
New Mortgage Bonds of the 8.90% Series, of which this is one, are
subject to redemption as follows:
At the option of the Company and upon the notice and in the
manner and with the effect provided in the Indenture, any or all
of the New Mortgage Bonds of the 8.90% Series may be redeemed by
the Company at any time and from time to time prior to maturity,
upon payment of the Yield Maintenance Price (as defined in
Section 1 of Article III of the Supplemental Indenture dated as
of __________, 1995) for each of the New Mortgage Bonds of the
8.90% Series to be redeemed, together in each case with principal
and accrued interest to the redemption date.
To the extent permitted by, and as provided in, the Indenture,
modifications or alterations of the Indenture, or of any indenture
supplemental thereof, and of the rights and obligations of the Company and
of the holders of the Bonds may be made with the consent of the Company by
an affirmative vote of the holders of a majority in aggregate principal
amount of the Bonds entitled to vote then outstanding, at a meeting of the
holders of the Bonds called and held as provided in the Indenture, and by
an affirmative vote of the holders of a majority in aggregate principal
amount of the Bonds of any series or any tranche or tranches of any series
entitled to vote then outstanding and affected by such modification or
alteration, in case one or more but less than all of the series of Bonds or
of any tranche or tranches of any series of Bonds then outstanding under
the Indenture are so affected; provided, however, that no such modification
or alteration shall be made which will affect the terms of payment of the
principal of, or interest or premium, if any, on this Bond.
In case an Event of Default, as defined in the Indenture, shall occur,
the principal of all the New Mortgage Bonds of the 8.90% Series at any such
time outstanding under the Indenture may be declared or may become due and
payable, upon the conditions and in the manner and with the effect provided
in the Indenture. The Indenture provides that such declaration may be
rescinded under certain circumstances.
Article II
Issue Of New Mortgage Bonds Of The 8.90% Series
Section 1. The Company hereby exercises the right to obtain the
authentication of $7,500,000 principal amount of Bonds pursuant to the
terms of Section 4.03 of the Indenture. All such Bonds shall be New
Mortgage Bonds of the 8.90% Series.
Section 2. Such New Mortgage Bonds of the 8.90% Series may be
authenticated and delivered prior to the filing for recordation of this
Supplemental Indenture.
Article III
Redemption
Section 1. The New Mortgage Bonds of the 8.90% Series shall, upon the
notice and in the manner and with the effect provided in Article Five of
the Original Indenture, as amended by Section 2 of this Article III, be
redeemable at any time and from time to time prior to maturity, at the
option of the Company, as a whole, upon payment of the Yield Maintenance
Price (as hereinafter defined) for each of the New Mortgage Bonds of the
8.90% Series to be redeemed, together with accrued interest to the
redemption date; provided however, the Company shall not redeem any New
Mortgage Bonds of the 8.90% Series in a principal amount less than $100,000
or a multiple thereof.
If the notice of redemption shall have been given by the Company as
provided in the Indenture, the Computing Holder shall deliver written
notice to the Company on the fifth business day prior to such redemption
date, of the amount of the Yield Maintenance Price for the principal amount
of the New Mortgage Bonds of the 8.90% Series held by such Computing Holder
so to be redeemed, which notice shall set forth in reasonable detail the
computation thereof. The Yield Maintenance Price set forth in such notice
shall be binding on the Company absent manifest error.
The Company shall deliver to each holder of the New Mortgage Bonds of
the 8.90% Series to be redeemed on or before such redemption date a
certificate signed by a principal financial officer of the Company setting
forth the Yield Maintenance Price of the principal amount of the New
Mortgage Bonds of the 8.90% Series held by such holder so to be redeemed,
and setting forth in reasonable detail the calculation thereof accompanied
by a copy of the written notice given by the Computing Holder which sets
forth the computation of the Yield Maintenance Price of the New Mortgage
Bonds of the 8.90% Series held by the Computing Holder. The Company
covenants and agrees that it will on such redemption date redeem the New
Mortgage Bonds of the 8.90% Series held by each holder so to be redeemed by
payment to such holder the Yield Maintenance Price therefor, together with
interest accrued thereon to the date fixed for redemption.
As used in this Section 1:
"Computing Holder" shall mean the holder who holds bonds of the New
Mortgage Bonds of the 8.90% Series with an aggregate principal amount
outstanding higher than that of New Mortgage Bonds of the 8.90% Series held
by any other holder, or in the event two or more holders hold an equal
amount which constitutes the highest principal amount of the New Mortgage
Bonds of the 8.90% Series, any holder designated by the other holders. For
purposes of determining the Computing Holder, the New Mortgage Bonds of the
8.90% Series then held by Metropolitan Life Insurance Company and its
subsidiaries shall be aggregated.
"Weighted Average Life to Final Maturity" of any of the New Mortgage
Bonds of the 8.90% Series to be redeemed, shall mean the number of years
(rounded to the nearest one-twelfth of a year) which will elapse between
the scheduled date of redemption thereof and the scheduled date of maturity
of the New Mortgage Bonds of the 8.90% Series.
"Yield Maintenance Price" shall mean the higher of (1) the entire
unpaid principal amount of the New Mortgage Bonds of the 8.90% Series to be
redeemed and (2) the sum of the respective Payment Values of each
prospective interest payment and the principal payment as maturity in
respect of the principal amount of the New Mortgage Bonds of the 8.90%
Series to be redeemed (the amount of each such payment being herein
referred to as a "Payment"). The Payment Value of each Payment shall be
determined by discounting such Payment at the Reinvestment Rate, for the
period from the scheduled date on which such Payment is due to be made to
the applicable date of redemption. The Reinvestment Rate is the yield
which shall be imputed from the yields of those actively traded "On The
Run" United States Treasury securities having maturities as close as
practicable to the Weighted Average Life to Final Maturity of the New
Mortgage Bonds of the 8.90% Series to be redeemed. The yields of such
United States Treasury securities shall be determined as of 10 A.M. Eastern
Time on the date on which the Yield Maintenance Price is determined.
Section 2. Notice of redemption of any New Mortgage Bonds of the
8.90% Series shall be given as provided in Section 5.04 of the Original
Indenture. If given by mail, the mailing of such notice shall be a
condition precedent to redemption, provided that any notice which is mailed
in the manner provided in Section 5.04 of the Original Indenture shall be
conclusively presumed to have been duly given whether or not the holders
receive such notice, and failure to give such notice by mall, or any defect
in such notice, to the holder of any such bond designated for redemption
shall not affect the validity of the redemption of any other such bond.
Except for the changes in the giving of notice of redemption as provided in
this Section, the procedures for redemption of the New Mortgage Bonds of
the 8.90% Series shall be as provided in Article Five of the Original
Indenture.
Section 3. The Company, with the approval of the Trustee, may enter
into a written agreement with the holder of any New Mortgage Bonds of the
8.90% Series providing that payment of such bonds called for redemption in
part only be made directly by mail, wire transfer or in any other manner to
the holder thereof without presentation or surrender thereof if there shall
be delivered to the Trustee an agreement (which may be a composite with
other such agreements) between the Company and such holder (or other person
acting as agent for such holder or for whom such holder is a nominee) that
payment shall be so made, and that in the event the holder thereof shall
sell or transfer any such bonds (a) it will, prior to the delivery of such
bonds, either (i) surrender such bonds to the Trustee to make a proper
notation of the amount of principal paid thereon or (ii) surrender such
bonds to the Trustee against receipt of one or more New Mortgage Bonds of
the 8.90% Series in an aggregate principal amount equal to the unpaid
principal portion of the bonds so surrendered, and (b) it will promptly
notify the Company of the name and address of the transferee of any New
Mortgage Bonds of the 8.90% Series so transferred. The Trustee shall not
be liable or responsible to any such holder or transferee or to the Company
or to any other person for any act or omission to act on the part of the
Company or any such holder in connection with any such agreement. The
Company will indemnify and save the Trustee harmless against any liability
resulting from any such act or omission and against any liability resulting
from any action taken by the Trustee in accordance with the provisions of
any such agreement.
Article IV
The Trustee
The Trustee hereby accepts the trusts hereby declared provided, and
agrees to perform the same upon the terms and conditions in the Indenture
set forth and upon the following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Supplemental Indenture or the due execution hereof by the
Company or for or in respect of the recitals contained herein,
all of which recitals are made by the Company solely. In
general, each and every term and condition contained in Article
Eleven of the Indenture shall apply to this Supplemental
Indenture with the same force and effect as if the same were
herein set forth in full, with such omissions, variations and
modifications thereof as may be appropriate to make the same
conform to this Supplemental Indenture.
Article VI
Miscellaneous Provisions
This Supplemental Indenture may be simultaneously executed in any
number of counterparts, each of which when so executed shall be deemed to
be an original; but such counterparts shall together constitute but one and
the same instrument.
In Witness Whereof, said Northwestern Public Service Company has
caused this Indenture to be executed on its behalf by an Authorized
Executive Officer as defined in the Indenture, and its corporate seal to be
hereto affixed and said seal and this Indenture to be attested by an
Authorized Executive Officer as defined in the Indenture; and The Chase
Manhattan Bank (National Association), in evidence of its acceptance of the
trust hereby created, has caused this Indenture to be executed on its
behalf by its President or one of its Vice Presidents and its corporate
seal to be hereto affixed and said seal and this Indenture to be attested
by its Secretary or one of its Assistant Secretaries; all as of the _____
day of __________, 1995.
Northwestern Public Service Company
By
Vice President
(CORPORATE SEAL)
ATTEST:
[Assistant] Secretary
The Chase Manhattan Bank (National
Association)
By
Vice President
(CORPORATE SEAL)
ATTEST:
Assistant Secretary
State Of South Dakota )
) SS
County Of Beadle )
Be it Remembered, that on this _____th day of __________, 1995, before
me, ___________, a Notary Public within and for the County and State
aforesaid, personally came _________, Vice President, and __________,
[Assistant] Corporate Secretary of Northwestern Public Service Company, a
Delaware corporation, who are personally known to me to be such officers,
and who are personally known to me to be the same persons who executed as
such officers the within instrument of writing, and such persons duly
acknowledged that they signed, sealed and delivered the said instrument as
their free and voluntary act as such Vice President and [Assistant]
Corporate Secretary, respectively, and as the free and voluntary act of
Northwestern Public Service Company for the uses and purposes therein set
forth.
In Witness Whereof, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
(Notarial Seal)
Notary Public
[Name]
Notary Public,
Beadle County, S.D.
My Commission
expires __________, _____
State Of New York )
) SS
County Of Kings )
Be it Remembered, that on this _____th day of __________, 1995, before
me, ___________, a Notary Public within and for the County and State
aforesaid, personally came _________, Vice President, and __________,
Assistant Secretary of The Chase Manhattan Bank (National Association), a
national banking association, who are personally known to me to be such
officers, and who are personally known to me to be the same persons who
executed as such officers the within instrument of writing, and such
persons duly acknowledged that they signed, sealed and delivered the said
instrument as their free and voluntary act as such Vice President and
Assistant Secretary, respectively, and as the free and voluntary act of The
Chase Manhattan Bank (National Association) for the uses and purposes
therein set forth.
In Witness Whereof, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
(Notarial Seal)
Notary Public
Notary Public, State of New York
No. __________
Qualified in Kings County
Commission expires __________, ____
EXHIBIT B-2
TO CONSENT
Supplemental Indenture, dated as of __________, 1995 (the
"Supplemental Indenture"), made by and between Northwestern Public Service
Company, a corporation organized and existing under the laws of the State
of Delaware (the "Company"), the post office address of which is 33 Third
Street, S.E., Huron, South Dakota 57350, and The Chase Manhattan Bank
(National Association), a national banking association organized and
existing under the laws of the United States of America (the "Trustee"), as
Trustee under the General Mortgage Indenture and Deed of Trust dated as of
August 1, 1993, hereinafter mentioned, the post office address of which is
4 Chase MetroTech Center, 3rd Floor, Brooklyn, New York 11245;
Whereas, the Company has heretofore executed and delivered its General
Mortgage Indenture and Deed of Trust dated as of August 1, 1993 (the
"Original Indenture"), to the Trustee, for the security of the Bonds of the
Company issued and to be issued thereunder (the "Bonds"); and
Whereas, the Company has heretofore executed and delivered to the
Trustee a certain indenture supplemental to the Original Indenture dated
August 15, 1993 (the Original Indenture, as supplemented and amended by the
aforementioned supplemental indenture and by this Supplemental Indenture
being hereinafter referred to as the "Indenture"); and
Whereas, the Company desires to create a new series of Bonds to be
issued under the Indenture, to be known as New Mortgage Bonds, 8.824%
Series due 1998 (the "New Mortgage Bonds of the 8.824% Series"), which New
Mortgage Bonds of the 8.824% Series are to be issued in exchange for
certain other bonds of the Company of like tenor and amount that were
issued pursuant to a supplemental indenture to the Company's Indenture
dated August 1, 1940; and
Whereas, the Company, in the exercise of the powers and authority
conferred upon and reserved to it under the provisions of the Indenture,
and pursuant to appropriate resolutions of the Board of Directors, has duly
resolved and determined to make, execute and deliver to the Trustee a
Supplemental Indenture in the form hereof for the purposes herein provided;
and
Whereas, all conditions and requirements necessary to make this
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;
Now, Therefore, This Indenture Witnesseth:
That Northwestern Public Service Company, in consideration of the
exchange referred to above and ownership from time to time of the Bonds and
the service by the Trustee, and its successors, under the Indenture 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,
hereby covenants and agrees to and with the Trustee and its successors in
the trust under the Indenture, for the benefit of those who shall hold the
Bonds as follows:
Article I
Description Of Bonds Of The 8.824% Series Due 1998
Section 1. The Company hereby creates a new series of Bonds to be
known as "New Mortgage Bonds, 8.824% Series due 1998." The New Mortgage
Bonds of the 8.824% Series shall be executed, authenticated and delivered
in accordance with the provisions of, and shall in all respects be subject
to, all of the terms, conditions and covenants of the Indenture, as
supplemented and modified.
The commencement of the first interest period for the New Mortgage
Bonds of the 8.824% Series shall be July 15, 1995. The New Mortgage Bonds
of the 8.824% Series shall mature July 15, 1998, and shall bear interest at
the rate of 8.824% per annum, payable semi-annually on the fifteenth day of
January and the fifteenth day of July in each year. The person in whose
name any of the New Mortgage Bonds of the 8.824% Series are registered at
the close of business on any record date (as hereinafter defined) with
respect to any interest payment date shall be entitled to receive the
interest payable on such interest payment date notwithstanding the
cancellation of such New Mortgage Bonds of the 8.824% Series upon any
transfer or exchange subsequent to the record date and prior to such
interest payment date; provided, however, that if and to the extent the
Company shall default in the payment of the interest due on such interest
payment date, such defaulted interest shall be paid as provided in Section
3.07(b) of the Indenture.
The term "record date" as used in this Section with respect to any
interest payment date shall mean January 1 or July 1, as the case may be,
next preceding the semi-annual interest payment date, or, if such January 1
or July 1 shall be a legal holiday or a day on which banking institutions
in the Borough of Manhattan, The City of New York, State of New York, are
authorized by law to close, then the next preceding day which shall not be
a legal holiday or a day on which such institutions are so authorized to
close.
Section 2. The New Mortgage Bonds of the 8.824% Series shall be
issued only as registered Bonds without coupons of the denomination of
$1,000, or any integral multiple of $1,000, appropriately numbered. The
New Mortgage Bonds of the 8.824% Series may be exchanged, upon surrender
thereof, at the agency of the Company in the Borough of Manhattan, The City
of New York, State of New York, for one or more new New Mortgage Bonds of
the 8.824% Series of other authorized denominations, for the same aggregate
principal amount, subject to the terms and conditions set forth in the
Indenture.
New Mortgage Bonds of the 8.824% Series may be exchanged or
transferred without expense to the registered owner thereof except that any
taxes or other governmental charges required to be paid with respect to
such transfer or exchange shall be paid by the registered owner requesting
such transfer or exchange as a condition precedent to the exercise of such
privilege.
Section 3. The New Mortgage Bonds of the 8.824% Series and the
Trustee's Certificate of Authentication shall be substantially in the
following forms respectively:
[Form Of Bond Of The 8.824% Series Due 1998]
Northwestern Public Service Company
(Incorporated under the laws of the State of South Dakota)
New Mortgage Bond, 8.824% Series Due 1998
No. R- $______________
Northwestern Public Service Company, a corporation organized and
existing under the laws of the State of Delaware (the "Company", which term
shall include any successor corporation as defined in the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________ or registered assigns, the sum of __________ dollars on the
fifteenth day of July, 1998, in any coin or currency of the United States
of America which at the time of payment is legal tender for public and
private debts, and to pay interest thereon in like coin or currency from
July 15, 1995, payable semi-annually, on the fifteenth days of January and
July in each year, at the rate of 8.824% per annum, until the Company's
obligation with respect to the payment of such principal shall be
discharged as provided in the Indenture hereinafter mentioned. The
interest so payable on any January 15 or July 15 will, subject to certain
exceptions provided in the Supplemental Indenture dated as of __________,
1995, be paid to the person in whose name this Bond is registered at the
close of business on the immediately preceding January 1 or July 1, as the
case may be. Both principal of, and interest on, this Bond are payable at
the agency of the Company in the Borough of Manhattan, The City of New
York, State of New York.
This Bond shall not be entitled to any benefit under the Indenture or
any indenture supplemental thereto, or become valid or obligatory for any
purpose, until the form of certificate endorsed hereon shall have been
signed by or on behalf of The Chase Manhattan Bank (National Association),
the Trustee under the Indenture, or a successor trustee thereto under the
Indenture, or by an authenticating agent duly appointed by the Trustee in
accordance with the terms of the Indenture.
The provisions of this New Mortgage Bond are continued on the reverse
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
In Witness Whereof, Northwestern Public Service Company has caused
this New Mortgage Bond to be signed (manually or by facsimile signature) in
its name by an Authorized Executive Officer, as defined in the Indenture,
and its corporate seal (or a facsimile thereof) to be hereto affixed and
attested (manually or by facsimile signature) by an Authorized Executive
Officer, as defined in the Indenture.
Dated: Northwestern Public Service Company
By
Authorized Executive Officer
ATTEST:
Authorized Executive Officer
[Form of Trustee's Certificate]
This is one of the Bonds of the series designated therein referred to
in the within-mentioned Indenture and Supplemental Indenture dated as of
_________, 1995.
The Chase Manhattan Bank (National
Association), as Trustee
By
Authorized Officer
[FORM OF REVERSE OF BOND]
This New Mortgage Bond of the 8.824% Series is one of a duly
authorized issue of Bonds of the Company (the "Bonds"), of the series
hereinafter specified, all issued and to be issued under and equally
secured by a General Mortgage Indenture and Deed of Trust (the
"Indenture"), dated as of August 1, 1993, executed by the Company to The
Chase Manhattan Bank (National Association) (the "Trustee"), as Trustee, to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description to the properties mortgaged and pledged, the nature
and extent of the security, the rights of registered owners of the Bonds
and of the Trustee in respect thereof, and the terms and conditions upon
which the Bonds are, and are to be, secured. The Bonds may be issued in
series, for various principal sums, may mature at different times, may bear
interest at different rates and may otherwise vary as provided in the
Indenture. This New Mortgage Bond of the 8.824% Series is one of a series
designated as the "New Mortgage Bonds, 8.824% Series Due 1998" (the "New
Mortgage Bonds of the 8.824% Series") of the Company issued under and
secured by the Indenture and described in the supplemental indenture dated
as of __________, 1995 (the "Supplemental Indenture dated as of __________,
1995"), between the Company and the Trustee, supplemental to the Indenture.
New Mortgage Bonds of the 8.824% Series, of which this is one, are
subject to redemption at the option of the Company and upon the notice and
in the manner and with the effect provided in the Indenture, all, but not
less than all, of the New Mortgage Bonds of the 8.824% Series may be
redeemed by the Company at any time, on or after July 15, 1996 and prior to
maturity, upon payment of the following percentages of the principal
amounts thereof:
If redeemed during the twelve month period beginning the fifteenth day
of July of the year:
1996 ---------- 101.471%
1997 ---------- 100.000%
together with accrued interest to the redemption date.
To the extent permitted by, and as provided in, the Indenture,
modifications or alterations of the Indenture, or of any indenture
supplemental thereof, and of the rights and obligations of the Company and
of the holders of the Bonds may be made with the consent of the Company by
an affirmative vote of the holders of a majority in aggregate principal
amount of the Bonds entitled to vote then outstanding, at a meeting of the
holders of the Bonds called and held as provided in the Indenture, and by
an affirmative vote of the holders of a majority in aggregate principal
amount of the Bonds of any series or any tranche or tranches of any series
entitled to vote then outstanding and affected by such modification or
alteration, in case one or more but less than all of the series of Bonds or
of any tranche or tranches of any series of Bonds then outstanding under
the Indenture are so affected; provided, however, that no such modification
or alteration shall be made which will affect the terms of payment of the
principal of, or interest or premium, if any, on this Bond.
In case an Event of Default, as defined in the Indenture, shall occur,
the principal of all the New Mortgage Bonds of the 8.824% Series at any
such time outstanding under the Indenture may be declared or may become due
and payable, upon the conditions and in the manner and with the effect
provided in the Indenture. The Indenture provides that such declaration
may be rescinded under certain circumstances.
Article II
Issue Of New Mortgage Bonds Of The 8.824% Series
Section 1. The Company hereby exercises the right to obtain the
authentication of $15,000,000 principal amount of Bonds pursuant to the
terms of Section 4.03 of the Indenture. All such Bonds shall be New
Mortgage Bonds of the 8.824% Series.
Section 2. Such New Mortgage Bonds of the 8.824% Series may be
authenticated and delivered prior to the filing for recordation of this
Supplemental Indenture.
Article III
Redemption
Section 1. The New Mortgage Bonds of the 8.824% Series shall, upon
the notice and in the manner and with the effect provided in Article Five
of the Original Indenture, as amended by Section 2 of this Article III, be
redeemable at any time, on or after July 15, 1996 and prior to maturity, at
the option of the Company, as a whole, upon payment of the following
percentages of the principal amounts thereof:
If redeemed during the twelve month period beginning the fifteenth day
of July of the year:
1996 ---------- 101.471%
1997 ---------- 100.000%
together with accrued interest to the redemption date.
Section 2. Notice of redemption of any New Mortgage Bonds of the
8.824% Series shall be given as provided in Section 5.04 of the Original
Indenture. If given by mail, the mailing of such notice shall be a
condition precedent to redemption, provided that any notice which is mailed
in the manner provided in Section 5.04 of the Original Indenture shall be
conclusively presumed to have been duly given whether or not the holders
receive such notice, and failure to give such notice by mall, or any defect
in such notice, to the holder of any such bond designated for redemption
shall not affect the validity of the redemption of any other such bond.
Except for the changes in the giving of notice of redemption as provided in
this Section, the procedures for redemption of the New Mortgage Bonds of
the 8.824% Series shall be as provided in Article Five of the Original
Indenture.
Section 3. The Company, with the approval of the Trustee, may enter
into a written agreement with the holder of any New Mortgage Bonds of the
8.824% Series providing that payment of such bonds called for redemption in
part only be made directly by mail, wire transfer or in any other manner to
the holder thereof without presentation or surrender thereof if there shall
be delivered to the Trustee an agreement (which may be a composite with
other such agreements) between the Company and such holder (or other person
acting as agent for such holder or for whom such holder is a nominee) that
payment shall be so made, and that in the event the holder thereof shall
sell or transfer any such bonds (a) it will, prior to the delivery of such
bonds, either (i) surrender such bonds to the Trustee to make a proper
notation of the amount of principal paid thereon or (ii) surrender such
bonds to the Trustee against receipt of one or more New Mortgage Bonds of
the 8.824% Series in an aggregate principal amount equal to the unpaid
principal portion of the bonds so surrendered, and (b) it will promptly
notify the Company of the name and address of the transferee of any New
Mortgage Bonds of the 8.824% Series so transferred. The Trustee shall not
be liable or responsible to any such holder or transferee or to the Company
or to any other person for any act or omission to act on the part of the
Company or any such holder in connection with any such agreement. The
Company will indemnify and save the Trustee harmless against any liability
resulting from any such act or omission and against any liability resulting
from any action taken by the Trustee in accordance with the provisions of
any such agreement.
Article IV
The Trustee
The Trustee hereby accepts the trusts hereby declared provided, and
agrees to perform the same upon the terms and conditions in the Indenture
set forth and upon the following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Supplemental Indenture or the due execution hereof by the
Company or for or in respect of the recitals contained herein,
all of which recitals are made by the Company solely. In
general, each and every term and condition contained in Article
Eleven of the Indenture shall apply to this Supplemental
Indenture with the same force and effect as if the same were
herein set forth in full, with such omissions, variations and
modifications thereof as may be appropriate to make the same
conform to this Supplemental Indenture.
Article V
Miscellaneous Provisions
This Supplemental Indenture may be simultaneously executed in any
number of counterparts, each of which when so executed shall be deemed to
be an original; but such counterparts shall together constitute but one and
the same instrument.
In Witness Whereof, said Northwestern Public Service Company has
caused this Indenture to be executed on its behalf by an Authorized
Executive Officer as defined in the Indenture, and its corporate seal to be
hereto affixed and said seal and this Indenture to be attested by an
Authorized Executive Officer as defined in the Indenture; and The Chase
Manhattan Bank (National Association), in evidence of its acceptance of the
trust hereby created, has caused this Indenture to be executed on its
behalf by its President or one of its Vice Presidents and its corporate
seal to be hereto affixed and said seal and this Indenture to be attested
by its Secretary or one of its Assistant Secretaries; all as of the _____
day of __________, 1995.
Northwestern Public Service Company
By
Vice President
(CORPORATE SEAL)
ATTEST:
[Assistant] Secretary
The Chase Manhattan Bank (National Association)
By
Vice President
(CORPORATE SEAL)
ATTEST:
Assistant Secretary
State Of South Dakota )
) SS
County Of Beadle )
Be it Remembered, that on this _____th day of __________, 1995, before
me, ___________, a Notary Public within and for the County and State
aforesaid, personally came _________, Vice President, and __________,
[Assistant] Corporate Secretary of Northwestern Public Service Company, a
Delaware corporation, who are personally known to me to be such officers,
and who are personally known to me to be the same persons who executed as
such officers the within instrument of writing, and such persons duly
acknowledged that they signed, sealed and delivered the said instrument as
their free and voluntary act as such Vice President and [Assistant]
Corporate Secretary, respectively, and as the free and voluntary act of
Northwestern Public Service Company for the uses and purposes therein set
forth.
In Witness Whereof, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
(Notarial Seal)
Notary Public
[Name]
Notary Public,
Beadle County, S.D.
My Commission
expires __________, _____
State Of New York )
) SS
County Of Kings )
Be it Remembered, that on this _____th day of __________, 1995, before
me, ___________, a Notary Public within and for the County and State
aforesaid, personally came _________, Vice President, and __________,
Assistant Secretary of The Chase Manhattan Bank (National Association), a
national banking association, who are personally known to me to be such
officers, and who are personally known to me to be the same persons who
executed as such officers the within instrument of writing, and such
persons duly acknowledged that they signed, sealed and delivered the said
instrument as their free and voluntary act as such Vice President and
Assistant Secretary, respectively, and as the free and voluntary act of The
Chase Manhattan Bank (National Association) for the uses and purposes
therein set forth.
In Witness Whereof, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
(Notarial Seal)
Notary Public
Notary Public, State of New York
No. __________
Qualified in Kings County
Commission expires __________, ____
EXHIBIT B-3
TO CONSENT
Supplemental Indenture, dated as of __________, 1995 (the
"Supplemental Indenture"), made by and between Northwestern Public Service
Company, a corporation organized and existing under the laws of the State
of Delaware (the "Company"), the post office address of which is 33 Third
Street, S.E., Huron, South Dakota 57350, and The Chase Manhattan Bank
(National Association), a national banking association organized and
existing under the laws of the United States of America (the "Trustee"), as
Trustee under the General Mortgage Indenture and Deed of Trust dated as of
August 1, 1993, hereinafter mentioned, the post office address of which is
4 Chase MetroTech Center, 3rd Floor, Brooklyn, New York 11245;
Whereas, the Company has heretofore executed and delivered its General
Mortgage Indenture and Deed of Trust dated as of August 1, 1993 (the
"Original Indenture"), to the Trustee, for the security of the Bonds of the
Company issued and to be issued thereunder (the "Bonds"); and
Whereas, the Company has heretofore executed and delivered to the
Trustee a certain indenture supplemental to the Original Indenture dated
August 15, 1993 (the Original Indenture, as supplemented and amended by the
aforementioned supplemental indenture and by this Supplemental Indenture
being hereinafter referred to as the "Indenture"); and
Whereas, the Company desires to create a new series of Bonds to be
issued under the Indenture, to be known as New Mortgage Bonds, 6.99% Series
due 2002 (the "New Mortgage Bonds of the 6.99% Series"), which New Mortgage
Bonds of the 6.99% Series are to be issued in exchange for certain other
bonds of the Company of like tenor and amount that were issued pursuant to
a supplemental indenture to the Company's Indenture dated August 1, 1940;
and
Whereas, the Company, in the exercise of the powers and authority
conferred upon and reserved to it under the provisions of the Indenture,
and pursuant to appropriate resolutions of the Board of Directors, has duly
resolved and determined to make, execute and deliver to the Trustee a
Supplemental Indenture in the form hereof for the purposes herein provided;
and
Whereas, all conditions and requirements necessary to make this
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;
Now, Therefore, This Indenture Witnesseth:
That Northwestern Public Service Company, in consideration of the
exchange referred to above and ownership from time to time of the Bonds and
the service by the Trustee, and its successors, under the Indenture 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,
hereby covenants and agrees to and with the Trustee and its successors in
the trust under the Indenture, for the benefit of those who shall hold the
Bonds as follows:
Article I
Description Of Bonds Of The 6.99% Series Due 2002
Section 1. The Company hereby creates a new series of Bonds to be
known as "New Mortgage Bonds, 6.99% Series due 2002." The New Mortgage
Bonds of the 6.99% Series shall be executed, authenticated and delivered in
accordance with the provisions of, and shall in all respects be subject to,
all of the terms, conditions and covenants of the Indenture, as
supplemented and modified.
The commencement of the first interest period for the New Mortgage
Bonds of the 6.99% Series shall be [March 1] [September 1], 1995. The New
Mortgage Bonds of the 6.99% Series shall mature September 1, 2002, and
shall bear interest at the rate of 6.99% per annum, payable semi-annually
on the first day of March and the first day of September in each year. The
person in whose name any of the New Mortgage Bonds of the 6.99% Series are
registered at the close of business on any record date (as hereinafter
defined) with respect to any interest payment date shall be entitled to
receive the interest payable on such interest payment date notwithstanding
the cancellation of such New Mortgage Bonds of the 6.99% Series upon any
transfer or exchange subsequent to the record date and prior to such
interest payment date; provided, however, that if and to the extent the
Company shall default in the payment of the interest due on such interest
payment date, such defaulted interest shall be paid as provided in Section
3.07(b) of the Indenture.
The term "record date" as used in this Section with respect to any
interest payment date shall mean February 15 or August 15, as the case may
be, next preceding the semi-annual interest payment date, or, if such
February 15 or August 15 shall be a legal holiday or a day on which banking
institutions in the Borough of Manhattan, The City of New York, State of
New York, are authorized by law to close, then the next preceding day which
shall not be a legal holiday or a day on which such institutions are so
authorized to close.
Section 2. The New Mortgage Bonds of the 6.99% Series shall be issued
only as registered Bonds without coupons of the denomination of $1,000, or
any integral multiple of $1,000, appropriately numbered. The New Mortgage
Bonds of the 6.99% Series may be exchanged, upon surrender thereof, at the
agency of the Company in the Borough of Manhattan, The City of New York,
State of New York, for one or more new New Mortgage Bonds of the 6.99%
Series of other authorized denominations, for the same aggregate principal
amount, subject to the terms and conditions set forth in the Indenture.
New Mortgage Bonds of the 6.99% Series may be exchanged or transferred
without expense to the registered owner thereof except that any taxes or
other governmental charges required to be paid with respect to such
transfer or exchange shall be paid by the registered owner requesting such
transfer or exchange as a condition precedent to the exercise of such
privilege.
Section 3. The New Mortgage Bonds of the 6.99% Series and the
Trustee's Certificate of Authentication shall be substantially in the
following forms respectively:
[Form Of Bond Of The 6.99% Series Due 2002]
Northwestern Public Service Company
(Incorporated under the laws of the State of South Dakota)
New Mortgage Bond, 6.99% Series Due 2002
No. R- $______________
Northwestern Public Service Company, a corporation organized and
existing under the laws of the State of Delaware (the "Company", which term
shall include any successor corporation as defined in the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________ or registered assigns, the sum of __________ dollars on the
first day of September, 2002, in any coin or currency of the United States
of America which at the time of payment is legal tender for public and
private debts, and to pay interest thereon in like coin or currency from
[March 1] [September 1], 1995, payable semi-annually, on the first days of
March and September in each year, at the rate of 6.99% per annum, until the
Company's obligation with respect to the payment of such principal shall be
discharged as provided in the Indenture hereinafter mentioned. The
interest so payable on any March 1 or September 1 will, subject to certain
exceptions provided in the Supplemental Indenture dated as of __________,
1995, be paid to the person in whose name this Bond is registered at the
close of business on the immediately preceding February 15 or August 15, as
the case may be. Both principal of, and interest on, this Bond are payable
at the agency of the Company in the Borough of Manhattan, The City of New
York, State of New York.
This Bond shall not be entitled to any benefit under the Indenture or
any indenture supplemental thereto, or become valid or obligatory for any
purpose, until the form of certificate endorsed hereon shall have been
signed by or on behalf of The Chase Manhattan Bank (National Association),
the Trustee under the Indenture, or a successor trustee thereto under the
Indenture, or by an authenticating agent duly appointed by the Trustee in
accordance with the terms of the Indenture.
The provisions of this New Mortgage Bond are continued on the reverse
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
In Witness Whereof, Northwestern Public Service Company has caused
this New Mortgage Bond to be signed (manually or by facsimile signature) in
its name by an Authorized Executive Officer, as defined in the Indenture,
and its corporate seal (or a facsimile thereof) to be hereto affixed and
attested (manually or by facsimile signature) by an Authorized Executive
Officer, as defined in the Indenture.
Dated: Northwestern Public Service Company
By
Authorized Executive Officer
ATTEST:
Authorized Executive Officer
[Form of Trustee's Certificate]
This is one of the Bonds of the series designated therein referred to
in the within-mentioned Indenture and Supplemental Indenture dated as of
_________, 1995.
The Chase Manhattan Bank (National
Association), as Trustee
By
Authorized Officer
[FORM OF REVERSE OF BOND]
This New Mortgage Bond of the 6.99% Series is one of a duly authorized
issue of Bonds of the Company (the "Bonds"), of the series hereinafter
specified, all issued and to be issued under and equally secured by a
General Mortgage Indenture and Deed of Trust (the "Indenture"), dated as of
August 1, 1993, executed by the Company to The Chase Manhattan Bank
(National Association) (the "Trustee"), as Trustee, to which Indenture and
all indentures supplemental thereto reference is hereby made for a
description to the properties mortgaged and pledged, the nature and extent
of the security, the rights of registered owners of the Bonds and of the
Trustee in respect thereof, and the terms and conditions upon which the
Bonds are, and are to be, secured. The Bonds may be issued in series, for
various principal sums, may mature at different times, may bear interest at
different rates and may otherwise vary as provided in the Indenture. This
New Mortgage Bond of the 6.99% Series is one of a series designated as the
"New Mortgage Bonds, 6.99% Series Due 2002" (the "New Mortgage Bonds of the
6.99% Series") of the Company issued under and secured by the Indenture and
described in the supplemental indenture dated as of __________, 1995 (the
"Supplemental Indenture dated as of __________, 1995"), between the Company
and the Trustee, supplemental to the Indenture.
New Mortgage Bonds of the 6.99% Series, of which this is one, are
subject to redemption as follows:
(I) At the option of the Company and upon the notice and in the
manner and with the effect provided in the Indenture, all, but not less
than all, of the New Mortgage Bonds of the 6.99% Series may be redeemed by
the Company at any time, on or after September 1, 1997 and prior to
maturity, upon payment of the Make-Whole Amount (as defined in Section 1 of
Article III of the Supplemental Indenture dated as of __________, 1995) for
each of the New Mortgage Bonds of the 6.99% Series to be redeemed, together
in each case with principal and accrued interest to the redemption date.
(II) New Mortgage Bonds of the 6.99% Series shall be redeemed by the
Company in the amounts required by the Supplemental Indenture dated as of
__________, 1995 on September 1 of each year, commencing in 1998, through
the operation of the sinking fund for such bonds, upon payment of the
principal amount thereof together with accrued interest to the redemption
date.
To the extent permitted by, and as provided in, the Indenture,
modifications or alterations of the Indenture, or of any indenture
supplemental thereof, and of the rights and obligations of the Company and
of the holders of the Bonds may be made with the consent of the Company by
an affirmative vote of the holders of a majority in aggregate principal
amount of the Bonds entitled to vote then outstanding, at a meeting of the
holders of the Bonds called and held as provided in the Indenture, and by
an affirmative vote of the holders of a majority in aggregate principal
amount of the Bonds of any series or any tranche or tranches of any series
entitled to vote then outstanding and affected by such modification or
alteration, in case one or more but less than all of the series of Bonds or
of any tranche or tranches of any series of Bonds then outstanding under
the Indenture are so affected; provided, however, that no such modification
or alteration shall be made which will affect the terms of payment of the
principal of, or interest or premium, if any, on this Bond.
In case an Event of Default, as defined in the Indenture, shall occur,
the principal of all the New Mortgage Bonds of the 6.99% Series at any such
time outstanding under the Indenture may be declared or may become due and
payable, upon the conditions and in the manner and with the effect provided
in the Indenture. The Indenture provides that such declaration may be
rescinded under certain circumstances.
Article II
Issue Of New Mortgage Bonds Of The 6.99% Series
Section 1. The Company hereby exercises the right to obtain the
authentication of $25,000,000 principal amount of Bonds pursuant to the
terms of Section 4.03 of the Indenture. All such Bonds shall be New
Mortgage Bonds of the 6.99% Series.
Section 2. Such New Mortgage Bonds of the 6.99% Series may be
authenticated and delivered prior to the filing for recordation of this
Supplemental Indenture.
Article III
Redemption
Section 1. The New Mortgage Bonds of the 6.99% Series shall, upon the
notice and in the manner and with the effect provided in Article Five of
the Original Indenture, as amended by Section 3 of this Article III, be
redeemable (otherwise than out of moneys specified in Section 2 of this
Article III), at any time, on or after September 1, 1997 and prior to
maturity, at the option of the Company, as a whole, upon payment of the
principal amount of each of the New Mortgage Bonds of the 6.99% Series to
be redeemed, and accrued interest thereon to the redemption date, together
with the applicable Make-Whole Amount (as hereinafter defined).
On or before the redemption date specified in the notice of redemption
given by the Company as provided in the Indenture, the Company shall
deliver to each holder of the New Mortgage Bonds of the 6.99% Series to be
redeemed, a certificate signed by a principal financial officer of the
Company setting forth the Make-Whole Amount (determined in good faith by
the Company as of the date five business days prior to the date of such
redemption), if any, applicable to the New Mortgage Bonds of the 6.99%
Series held by such holder so to be redeemed. In the event the Company
shall incorrectly compute the Make-Whole Amount payable in connection with
any New Mortgage Bond of the 6.99% Series, the holder of such Bond shall
not be bound by such incorrect computation, but shall instead be entitled
to receive an amount equal to the correct Make-Whole Amount, if any,
computed in compliance with the terms hereof.
As used in this Section 1:
"Make-Whole Amount" shall mean the excess, if any, of (i) the
aggregate present value as of the date of such redemption of each dollar of
principal being prepaid and the amount of interest (exclusive of interest
accrued to the date of redemption) that would have been payable in respect
of such dollar if such redemption had not been made, determined by
discounting such amounts at the Reinvestment Rate from the respective dates
on which they would have been payable, over (ii) 100% of the principal
amount of the outstanding New Mortgage Bonds of the 6.99% Series being
redeemed. If the Reinvestment Rate is equal to or higher than 6.99%, the
Make-Whole Amount shall be zero. For purposes of any determination of the
Make-Whole Amount:
"Reinvestment Rate" shall mean the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in
the Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the Weighted Average Life to Maturity of the
principal amount of the New Mortgage Bonds of the 6.99% Series being
redeemed. If no maturity exactly corresponds to such Weighted Average
Life to Maturity, yields for the two published maturities most closely
corresponding to such Weighted Average Life to Maturity shall be
calculated pursuant to the immediately preceding sentence and the
Reinvestment Rate shall be interpolated or extrapolated from such
yields on a straightline basis, rounding in each of such relevant
periods to the nearest month. For the purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior
to the date of determination of the Make-Whole Amount shall be used.
"Statistical Release" shall mean the then most recently published
statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Federal Reserve System
and which establishes yields on actively traded U.S. Government
Securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination hereunder,
then such other reasonably comparable index which shall be
designated by the holders of 66-2/3% in aggregate principal amount of
the outstanding New Mortgage Bonds of the 6.99% Series.
"Weighted Average Life to Maturity" of any of the New Mortgage
Bonds of the 6.99% Series to be redeemed shall mean the number of
years (rounded to the nearest one-twelfth of a year) obtained by
dividing the then Remaining Dollar-Years of the New Mortgage Bonds of
the 6.99% Series by the then outstanding principal amount of such
Bonds. For the purposes of this definition, "Remaining Dollar-Years"
means the sum of the amounts obtained by multiplying the amount of
each then remaining sinking fund or other required repayment,
including repayment at final maturity, by the number of years
(calculated to the nearest one-twelfth of a year) which will elapse
between the time of such determination and the date of such repayment.
Section 2. Upon the notice and in the manner and with the effect
provided in Article Five of the Original Indenture, as amended by Section 3
of this Article III, any of the New Mortgage Bonds of the 6.99% Series
shall be redeemable on the first day of September in each year, commencing
in 1998, by operation of the sinking fund provided for by Section 1 of
Article IV hereof, upon payment of the principal amount thereof together
with accrued interest to the redemption date.
Section 3. Whenever the Company shall propose to redeem less than all
of the outstanding New Mortgage Bonds of the 6.99% Series on any redemption
date, the Trustee, instead of selecting by lot, shall select the serial
numbers of the New Mortgage Bonds of the 6.99% Series to be redeemed (in
whole or in part) by prorating, as nearly as may be, the aggregate
principal amount of the New Mortgage Bonds of the 6.99% Series to be
redeemed among the registered owners of the New Mortgage Bonds of the 6.99%
Series according to the principal amount thereof registered in their
respective names. In any such proration, the Trustee shall make such
adjustments, reallocations and eliminations as it shall deem proper to the
end that the principal amount of the New Mortgage Bonds of the 6.99% Series
so prorated to any registered owner of the New Mortgage Bonds of the 6.99%
Series shall be $1,000 or a multiple thereof, by increasing or decreasing
or eliminating the amount which would be allocable to any such registered
owner on the basis of exact proportion by an amount not exceeding $1,000.
The Trustee in its discretion may determine the particular New Mortgage
Bonds of the 6.99% Series (if there are more than one) registered in the
name of any registered owner which are to be redeemed, in whole or in part.
In any determination by proration pursuant to this Section, New Mortgage
Bonds of the 6.99% Series held by the Company shall not be considered
outstanding and shall be excluded in making the determination of the New
Mortgage Bonds of the 6.99% Series to be redeemed.
Notice of redemption of any New Mortgage Bonds of the 6.99% Series
shall be given as provided in Section 5.04 of the Original Indenture,
except that, in the case of redemption by operation of the sinking fund for
such bonds, the notice shall state that the redemption is for the account
of the sinking fund. If given by mail, the mailing of such notice shall be
a condition precedent to redemption, provided that any notice which is
mailed in the manner provided in Section 5.04 of the Original Indenture
shall be conclusively presumed to have been duly given whether or not the
holders receive such notice, and failure to give such notice by mall, or
any defect in such notice, to the holder of any such bond designated for
redemption in whole or in part shall not affect the validity of the
redemption of any other such bond.
Except for the determination of the serial numbers of the New Mortgage
Bonds of the 6.99% Series to be redeemed (in whole or in part) by proration
as provided in this Section when less than all of the New Mortgage Bonds of
the 6.99% Series are to be redeemed on any redemption date and except for
the changes in the giving of notice of redemption as provided in this
Section, the procedures for redemption of the New Mortgage Bonds of the
6.99% Series shall be as provided in Article Five of the Original
Indenture.
Section 4. The Company, with the approval of the Trustee, may enter
into a written agreement with the holder of any New Mortgage Bonds of the
6.99% Series providing that payment of such bonds called for redemption in
part only be made directly by mail, wire transfer or in any other manner to
the holder thereof without presentation or surrender thereof if there shall
be delivered to the Trustee an agreement (which may be a composite with
other such agreements) between the Company and such holder (or other person
acting as agent for such holder or for whom such holder is a nominee) that
payment shall be so made, and that in the event the holder thereof shall
sell or transfer any such bonds (a) it will, prior to the delivery of such
bonds, either (i) surrender such bonds to the Trustee to make a proper
notation of the amount of principal paid thereon or (ii) surrender such
bonds to the Trustee against receipt of one or more New Mortgage Bonds of
the 6.99% Series in an aggregate principal amount equal to the unpaid
principal portion of the bonds so surrendered, and (b) it will promptly
notify the Company of the name and address of the transferee of any New
Mortgage Bonds of the 6.99% Series so transferred. The Trustee shall not
be liable or responsible to any such holder or transferee or to the Company
or to any other person for any act or omission to act on the part of the
Company or any such holder in connection with any such agreement. The
Company will indemnify and save the Trustee harmless against any liability
resulting from any such act or omission and against any liability resulting
from any action taken by the Trustee in accordance with the provisions of
any such agreement.
Article IV
Additional Covenants
The Company covenants and agrees, subject to the terms and of this
Section, that it will pay to the Trustee on or before the last day of
August, 1998 and on or before the last day of August in each calendar year
thereafter so long as any New Mortgage Bonds of the 6.99% Series shall be
outstanding (each such last day of August being referred to herein as a
"sinking fund payment date") as and for a cash sinking fund for the
retirement of New Mortgage Bonds of the 6.99% Series, a sum in cash
sufficient to redeem on the first day of September next following such
sinking fund payment date, at the redemption price for the redemption of
New Mortgage Bonds of the 6.99% Series by operation of the sinking fund, a
principal amount of bonds of said series at least equal to twenty per
centum of the greatest principal amount of bonds of said series outstanding
at any time (determined as in this Section provided) between September 1,
1992, and the end of the calendar year immediately preceding such sinking
fund payment date. Cash paid to the Trustee by the Company pursuant to
this Section shall be applied by the Trustee to the redemption on the next
following the first day of September of the specified principal amount of
New Mortgage Bonds of the 6.99% Series in accordance with provisions of
this Section; and the Company shall carry out the procedures required of it
for such redemption.
On or before the first day of July in each year beginning with the
calendar year 1998, so long as any New Mortgage Bonds of the 6.99% Series
shall be outstanding, the Company shall deliver to the Trustee a
certificate, signed in the name of the Company by its President or one of
its Vice Presidents and by its Treasurer or an Assistant Treasurer,
containing the statements required by Section 1.05 of the Original
Indenture, and showing the greatest principal amount of New Mortgage Bonds
of the 6.99% Series outstanding at any time between September 1, 1992 and
the end of the preceding calendar year, determined in accordance with the
provisions of this Section, which certificate shall include, or be
accompanied by, the notice from the Company to the Trustee pursuant to
Section 5.04 of the Original Indenture, as amended by Section 3 of Article
III hereof, specifying the principal amount of the New Mortgage Bonds of
the 6.99% Series to be redeemed on the first day of September next
following by operation of the sinking fund provided for by this Section.
In determining under the provisions of this Section the principal
amount of New Mortgage Bonds of the 6.99% Series outstanding under the
Indenture, there shall be excluded the principal amount of any bonds of
said series authenticated under the Indenture which are owned by the
Company.
Any and all New Mortgage Bonds of the 6.99% Series received by the
Trustee pursuant to any provision of this Section shall thereupon be
canceled and destroyed by the Trustee.
If the first day of September in the calendar year 1998, or in any
calendar year thereafter so long as any New Mortgage Bonds of the 6.99%
Series shall be outstanding, is a legal holiday or day on which banking
institutions which act as paying agents hereunder are authorized by law to
close, then payment of the redemption price (including interest payable
upon redemption) for purposes of redemption of New Mortgage Bonds of the
6.99% Series by operation of the sinking fund provided for by this Section
may be made on the next succeeding day which is not a legal holiday or a
day on which such banking institutions are authorized by law to close with
the same force and effect as if made on the nominal redemption date, and no
interest shall accrue for the period after the nominal redemption date.
Article V
The Trustee
The Trustee hereby accepts the trusts hereby declared provided, and
agrees to perform the same upon the terms and conditions in the Indenture
set forth and upon the following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Supplemental Indenture or the due execution hereof by the
Company or for or in respect of the recitals contained herein,
all of which recitals are made by the Company solely. In
general, each and every term and condition contained in Article
Eleven of the Indenture shall apply to this Supplemental
Indenture with the same force and effect as if the same were
herein set forth in full, with such omissions, variations and
modifications thereof as may be appropriate to make the same
conform to this Supplemental Indenture.
Article VI
Miscellaneous Provisions
This Supplemental Indenture may be simultaneously executed in any
number of counterparts, each of which when so executed shall be deemed to
be an original; but such counterparts shall together constitute but one and
the same instrument.
In Witness Whereof, said Northwestern Public Service Company has
caused this Indenture to be executed on its behalf by an Authorized
Executive Officer as defined in the Indenture, and its corporate seal to be
hereto affixed and said seal and this Indenture to be attested by an
Authorized Executive Officer as defined in the Indenture; and The Chase
Manhattan Bank (National Association), in evidence of its acceptance of the
trust hereby created, has caused this Indenture to be executed on its
behalf by its President or one of its Vice Presidents and its corporate
seal to be hereto affixed and said seal and this Indenture to be attested
by its Secretary or one of its Assistant Secretaries; all as of the _____
day of __________, 1995.
Northwestern Public Service Company
By
Vice President
(CORPORATE SEAL)
ATTEST:
[Assistant] Secretary
The Chase Manhattan Bank (National
Association)
By
Vice President
(CORPORATE SEAL)
ATTEST:
Assistant Secretary
State Of South Dakota )
) SS
County Of Beadle )
Be it Remembered, that on this _____th day of __________, 1995, before
me, ___________, a Notary Public within and for the County and State
aforesaid, personally came _________, Vice President, and __________,
[Assistant] Corporate Secretary of Northwestern Public Service Company, a
Delaware corporation, who are personally known to me to be such officers,
and who are personally known to me to be the same persons who executed as
such officers the within instrument of writing, and such persons duly
acknowledged that they signed, sealed and delivered the said instrument as
their free and voluntary act as such Vice President and [Assistant]
Corporate Secretary, respectively, and as the free and voluntary act of
Northwestern Public Service Company for the uses and purposes therein set
forth.
In Witness Whereof, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
(Notarial Seal)
Notary Public
[Name]
Notary Public,
Beadle County, S.D.
My Commission
expires __________, _____
State Of New York )
) SS
County Of Kings )
Be it Remembered, that on this _____th day of __________, 1995, before
me, ___________, a Notary Public within and for the County and State
aforesaid, personally came _________, Vice President, and __________,
Assistant Secretary of The Chase Manhattan Bank (National Association), a
national banking association, who are personally known to me to be such
officers, and who are personally known to me to be the same persons who
executed as such officers the within instrument of writing, and such
persons duly acknowledged that they signed, sealed and delivered the said
instrument as their free and voluntary act as such Vice President and
Assistant Secretary, respectively, and as the free and voluntary act of The
Chase Manhattan Bank (National Association) for the uses and purposes
therein set forth.
In Witness Whereof, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
(Notarial Seal)
Notary Public
Notary Public, State of New York
No. __________
Qualified in Kings County
Commission expires __________, ____