FORM OF SUPPLEMENTAL INDENTURE
TO BE USED IN CONNECTION WITH THE ISSUANCE OF
SUBORDINATED DEBT SECURITIES AND PREFERRED SECURITIES
FIRST SUPPLEMENTAL INDENTURE, dated as of ___________________,
1995 (this "First Supplemental Indenture"), between Northwestern
Public Service Company, a Delaware corporation (the "Company")
and The Chase Manhattan Bank (N.A.), as trustee (the "Trustee")
under the Indenture dated as of ________________, 1995 between
the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's
subordinated debt securities to be issued from time to time in
one or more series as might be determined by the Company under
the Indenture, in an unlimited aggregate principal amount which
may be authenticated and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its
Securities to be known as its ________% Junior Subordinated
Deferrable Interest Debentures due __________ (the "Debentures"),
the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in
the Indenture and this First Supplemental Indenture;
WHEREAS, NWPS Capital Financing I, a Delaware statutory business
trust (the "Trust"), has offered to the public $___________
aggregate liquidation amount of its _____% Trust Preferred
Capital Securities (the "Preferred Securities"), representing
undivided beneficial interests in the assets of the Trust, and
proposes to invest the proceeds from such offering in $__________
aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture and all requirements
necessary to make this First Supplemental Indenture a valid
instrument in accordance with its terms and to make the
Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company
have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the Holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and
substance of the Debentures and the terms, provisions and
conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning
when used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them in
the Declaration: (i) Business Day; (ii) Clearing
Agency; (iii) Delaware Trustee; (iv) Dissolution Tax
Opinion; (v) Investment Company Event; (vi) No
Recognition Opinion; (vii) Property Trustee; (viii)
Preferred Security Certificate; (ix) Regular Trustees;
(x) Special Event; and (xi) Tax Event; and
(g) the following terms have the meanings given to them in
this Section 1.1(g):
"Additional Interest" has the meaning specified in Section
2.5(c).
"Declaration" means the Amended and Restated Declaration of Trust
of NWPS Capital Financing I, a Delaware statutory business trust,
dated as of _______________, 1995, as amended or restated from
time to time.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in
accordance with the Declaration, and the Debentures held by the
Property Trustee are to be distributed to the holders of the
Trust Securities issued by the Trust pro rata in accordance with
the Declaration.
"Extended Maturity Date" means, if the Company elects to extend
the Maturity Date in accordance with Section 2.2(b), the date
selected by the Company which is after the Scheduled Maturity
Date but before _______________.
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"Maturity Date" means the date on which the Debentures mature and
on which the principal shall be due and payable together with all
accrued and unpaid interest thereon including Compounded Interest
and Additional Interest, if any.
"Scheduled Maturity Date" means _______________.
"Senior Indebtedness" means with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A)
indebtedness of such obligor for money borrowed and (B)
indebtedness evidenced by securities, debentures, bonds or other
similar instruments issued by such obligor, including, without
limitation, all obligations under its General Mortgage and Deed
of Trust dated as of August 1, 1993 (the "New Mortgage") between
the Company and The Chase Manhattan Bank (National Association),
and the Indenture dated August 1, 1940 (the "First Mortgage")
between the Company and The Chase Manhattan Bank (National
Association) and C.J. Heinzelmann; (ii) all capital lease
obligations of such obligor; (iii) all obligations of such
obligor issued or assumed as the deferred purchase price of
property, all conditional sale obligations of such obligor and
all obligations of such obligor under any title retention
agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of such
obligor for the reimbursement on any letter of credit, banker's
acceptance, security purchase facility or similar credit
transaction; (v) all obligations of the type referred to in
clauses (i) through (iv) of other persons for the payment of
which such obligor is responsible or liable as obligor, guarantor
or otherwise; and (vi) all obligations of the type referred to in
clauses (i) through (v) of other persons secured by any lien on
any property or asset of such obligor (whether or not such
obligation is assumed by such obligor), except for (1) any such
indebtedness that is by its terms subordinated to or pari passu
with the Debentures, as the case may be, and (2) any indebtedness
between or among any obligor and its Affiliates, including all
other debt securities and guarantees in respect of those debt
securities, issued to (a) any other NWPS Trust, or a trustee of
such trust, and (b) any other trust or a trustee of such trust,
partnership or other entity affiliated with the Company which is
a financing vehicle of the Company ("Financing Entity") in
connection with an issuance of preferred securities by such
Financing Entity of preferred securities or other securities
which rank pari passu with or junior to the Preferred Securities.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the
"_____% Junior Subordinated Deferrable Interest Debentures due
___________", limited in aggregate principal amount to $_________
million, which amount shall be as set forth in any written
Company Order for the authentication and delivery of Debentures
pursuant to Section 303 of the Indenture.
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SECTION 2.2. Maturity.
(a) The Maturity Date will be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to extend the Maturity Date
beyond the Scheduled Maturity Date in accordance
with Section 2.2(b), the Extended Maturity Date;
(b) the Company may at any time before the day which is 90
days before the Scheduled Maturity Date, elect to
extend the Maturity Date only once to the Extended
Maturity Date, provided that the following conditions
in this Section 2.2(b) are satisfied both at the date
the Company gives notice in accordance with Section
2.2(c) of its election to extend the Maturity Date and
at the Scheduled Maturity Date:
(i) the Company is not in bankruptcy or otherwise
insolvent;
(ii) the Company is not in default on any Securities
issued to the Trust or any trustee of the Trust in
connection with the issuance of Trust Securities
by the Trust;
(iii) the Company has made timely payments on the
Debentures for the immediately preceding 18
months without deferrals;
(iv) the Trust is not in arrears on payments of
Distributions on the Trust Securities issued by
it; and
(v) the Debentures are rated investment grade or the
equivalent by any one of Standard & Poor's Ratings
Group, Moody's Investors Service, Inc., Fitch
Investor Services, Duff & Phelps Credit Rating
Company or any other nationally recognized
statistical rating organization; and
(c) if the Company elects to extend the Maturity Date in
accordance with Section 2.2(b), the Company shall give
notice to Holders of the Debentures, the Property
Trustee, the Trust and the Trustee of the extension of
the Maturity Date and the Extended Maturity Date at
least 90 days before the Scheduled Maturity Date.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued
as Registered Securities in fully registered certificated form
without interest coupons. Principal of and interest on
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the Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such Debentures
will be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Trustee; provided,
however, that payment of interest may be made at the option of the
Company by check mailed to the Holder at such address as shall
appear in the Security Register. Notwithstanding the foregoing, so
long as the Holder of any Debentures is the Property Trustee, the
payment of the principal of and interest (including Compounded
Interest and Additional Interest, if any) on such Debentures held
by the Property Trustee will be made at such place and to such
account as may be designated by the Property Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event:
(i) the Debentures in certificated form may be
presented to the Trustee by the Property Trustee
in exchange for a global Debenture in an aggregate
principal amount equal to all Outstanding
Debentures (a "Global Debenture"), to be
registered in the name of the Depository, or its
nominee, and delivered by the Trustee to the
Depository for crediting to the accounts of its
participants pursuant to the instructions of the
Regular Trustees. The Company upon any such
presentation shall execute a Global Debenture in
such aggregate principal amount and deliver the
same to the Trustee for authentication and
delivery in accordance with the Indenture and this
First Supplemental Indenture. Payments on the
Debentures issued as a Global Debenture will be
made to the Depository; and
(ii) if any Preferred Securities are held in non book-
entry certificated form, the Debentures in
certificated form may be presented to the Trustee
by the Property Trustee and any Preferred Security
Certificate which represents Preferred Securities
other than Preferred Securities held by the
Clearing Agency or its nominee ("Non Book-Entry
Preferred Securities") will be deemed to represent
beneficial interests in Debentures presented to
the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate
liquidation amount of the Non Book-Entry Preferred
Securities until such Preferred Security
Certificates presented to the Security Registrar
for transfer or reissuance at which time such
Preferred Security Certificates will be cancelled
and a Debenture registered in the name of the
holder of the Preferred Security Certificate or
the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Security
Certificate cancelled will be executed by the
Company and delivered to the Trustee for
authentication and
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delivery in accordance with the Indenture and
this First Supplemental Indenture. On issue of
such Debentures, Debentures with an equivalent
aggregate principal amount that were presented
by the Property Trustee to the Trustee will be
deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not
in part, only to another nominee of the Depositary, or
to a successor Depositary selected or approved by the
Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary or
if at any time the Depositary for such series shall no
longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, and a successor
Depositary for such series is not appointed by the
Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case
may be, the Company will execute, and, subject to
Article Two of the Indenture, the Trustee will
authenticate and deliver the Debentures in definitive
registered form without coupons, in authorized
denominations, and in an aggregate principal amount
equal to the principal amount of the Global Debenture
in exchange for such Global Debenture. In addition,
the Company may at any time determine that the
Debentures shall no longer be represented by a Global
Debenture. In such event the Company will execute and
subject to a certificate evidencing such determination
by the Company, will authenticate and deliver the
Debentures in definitive registered form without
coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such
Global Debenture. Upon the exchange of the Global
Debenture for such Debentures in definitive registered
form without coupons, in authorized denominations, the
Global Debenture shall be cancelled by the Trustee.
Such Debentures in definitive registered form issued in
exchange for the Global Debenture shall be registered
in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the
Persons in whose names such Securities are so
registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the rate of _____%
per annum (the "Coupon Rate") from the original date of
issuance until the principal thereof becomes due and
payable, and on any overdue principal and (to the
extent that payment of such interest is enforceable
under applicable law) on any overdue installment of
interest at the Coupon Rate, compounded quarterly,
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payable (subject to the provisions of Article Four)
quarterly in arrears on March 31, June 30, September 30
and December 31 of each year (each, an "Interest
Payment Date"), commencing on _______________, 1995, to
the Person in whose name such Debenture or any
predecessor Debenture is registered, at the close of
business on the regular record date for such interest
installment, which, in respect of any Debentures of
which the Property Trustee is the Holder of or a Global
Debenture, shall be the close of business on the
Business Day next preceding that Interest Payment Date.
Notwithstanding the foregoing sentence, if the
Preferred Securities are no longer in book-entry only
form or if pursuant to the Indenture the Debentures are
not represented by a Global Debenture, the Company may
select a regular record date for such interest
installment which shall be any date at least one
Business Day before an Interest Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve
30-day months. Except as provided in the following
sentence, the amount of interest payable for any period
shorter than a full quarterly period for which interest
in computed, will be computed on the basis of the
actual number of days elapsed in such a 30-day month.
In the event that any date on which interest is payable
on the Debentures is not a Business Day, then payment
of interest payable on such date will be made on the
next succeeding day which is a Business Day (and
without any interest or other payment in respect of any
such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on
such date.
(c) If at any time while the Property Trustee is the Holder
of any Debentures, the Trust or the Property Trustee is
required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any
other taxing authority, then, in any case, the Company
will pay as additional interest ("Additional Interest")
on the Debentures held by the Property Trustee, such
additional amounts as shall be required so that the net
amounts received and retained by the Trust and the
Property Trustee after paying such taxes, duties,
assessments or other governmental charges will be equal
to the amounts the Trust and the Property Trustee would
have received had no such taxes, duties, assessments or
other government charges been imposed.
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ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular
Trustees shall have been informed by tax counsel
rendering the Dissolution Tax Opinion that a No
Recognition Opinion cannot be delivered to the Trust,
then, notwithstanding Section 3.2(a) but subject to Section
3.2(b), the Company shall have the right upon not less than 30
days nor more than 60 days notice to the Holders of the
Debentures to redeem the Debentures in whole or in part for cash
within 90 days following the occurrence of such Tax Event (the
"90-Day Period"), provided that, if at the time there is
available to the Company the opportunity to eliminate within the
90-Day Period, the Tax Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an
election or pursuing some other similar reasonable measure which
has no adverse effect on the Company, the Trust or the Holders of
the Trust Securities issued by the Trust, the Company shall
pursue such Ministerial Action in lieu of redemption; and
provided, further, that the Company shall have no right to redeem
the Debentures while the Trust is pursuing any Ministerial Action
pursuant to its obligations under the Declaration. The
Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or such earlier time as the
Company determines provided that the Company shall deposit with
the Trustee an amount sufficient to pay the Redemption Price by
10:00 a.m. on the date such Redemption Price is to be paid.
SECTION 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Eleven of the Indenture, except
as otherwise may be specified in this First
Supplemental Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part,
from time to time, on or after _______________, at a
redemption price equal to 100% of the principal amount
to be redeemed plus any accrued and unpaid interest
thereon to the date of such redemption (the "Optional
Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more
than 60 days' notice to the Holder of the Debentures,
at the Optional Redemption Price. If the Debentures
are only partially redeemed pursuant to this Section
3.2, the Debentures will be redeemed pro rata or by lot
or by any other method utilized by the Trustee;
provided that, if at the time of redemption the
Debentures are registered as a Global Debenture, the
Depository shall
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determine by lot the principal amount of such
Debentures held by each Holder of Debenture to
be redeemed. The Optional Redemption Price shall be
paid prior to 12:00 noon, New York time, on the date of
such redemption or at such earlier time as the Company
determines provided that the Company shall deposit with
the Trustee an amount sufficient to pay the Optional
Redemption Price by 10:00 a.m. on the date such
Optional Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result
in the delisting of the Preferred Securities issued by
the Trust from any national securities exchange or
other organization on which the Preferred Securities
are then listed, the Company shall not be permitted to
effect such partial redemption and may only redeem the
Debentures in whole.
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
The Company shall have the right, at any time during the term of
the Debentures, from time to time to defer payments of interest
by extending the interest payment period of such Debentures for
up to 20 consecutive quarters (the "Extended Interest Payment
Period"). To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension
of the interest payment period pursuant to this Section 4.1, will
bear interest thereon at the Coupon Rate compounded quarterly for
each quarter of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period
the Company shall pay all interest accrued and unpaid on the
Debentures, including any Additional Interest and Compounded
Interest ("Deferred Interest") that shall be payable, to the
Holders of the Debentures in whose names the Debentures are
registered in the Security Register on the first record date
after the end of the Extended Interest Payment Period. Before
the termination of any Extended Interest Payment Period, the
Company may further extend such period, provided that such period
together with all such further extensions thereof shall not
exceed 20 consecutive quarters. Upon the termination of any
Extended Interest Payment Period and upon the payment of all
Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an
Extended Interest Payment Period, except at the end thereof.
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SECTION 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered Holder
of the Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall
give written notice to the Regular Trustees, the
Property Trustee and the Trustee of its selection of
such Extended Interest Payment Period one Business Day
before the earlier of (a) the next succeeding date on
which Distributions on the Trust Securities issued by
the Trust are payable, or (b) the date the Trust is
required to give notice of the record date or the date
such Distributions are payable to the New York Stock
Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities
issued by the Trust, but in any event at least one
Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the
Debentures at the time the Company selects an Extended
Interest Payment Period, the Company shall give the
Holders of the Debentures and the Trustee written
notice of its selection of such Extended Interest
Payment Period 10 Business Days before the earlier of
(i) the next succeeding Interest Payment Date, or (ii)
the date the Company is required to give notice of the
record or payment date of such interest payment to the
New York Stock Exchange or other applicable
self-regulatory organization or to Holders of the
Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be
counted as one of the 20 quarters permitted in the
maximum Extended Interest Payment Period permitted
under Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Property Trustee in connection with the sale of
the Trust Securities by the Trust, the Company shall:
(a) pay for all costs and expenses relating to the
offering, sale and issuance of the Debentures,
including commissions to the underwriters payable
pursuant to the Underwriting Agreement and the Pricing
Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section
7.06 of the Indenture; and
(b) pay for all costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and
issuance of the Trust Securities (including commissions
to the underwriters in
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connection therewith), the fees and expenses of the
Property Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel
and telephone and other telecommunications expenses
and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust
assets); and (c) pay any and all taxes (other than
United States withholding taxes attributable to the
Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
ARTICLE VI
SUBORDINATION
SECTION 6.1. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Debentures
issued hereunder by such Holder's acceptance thereof likewise
covenants and agrees, that all Debentures shall be issued subject
to the provisions of this Article Six; and each Holder of a
Debenture, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of,
premium, if any, and interest on all Debentures issued hereunder
shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to the prior payment
in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article Six shall prevent the occurrence of
any default or Event of Default hereunder.
SECTION 6.2. Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any
other payment due on any Senior Indebtedness of the Company, as
the case may be, or in the event that the maturity of any Senior
Indebtedness of the Company, as the case may be, has been
accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the
principal (including redemption and sinking fund payments) of, or
premium, if any, or interest on the Debentures.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited
by the preceding paragraph of this Section 6.2, such payment
shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Indebtedness or their
respective representatives, or to the trustee or trustees under
any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear,
but only to the extent that the
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holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days
of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to
the Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 6.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any
payment is made by the Company on account of the principal (and
premium, if any) or interest on the Debentures; and upon any such
dissolution or winding-up or liquidation or reorganization, any
payment by the Company, or distribution of assets of the Company
of any kind or character, whether in cash, property or
securities, to which the Holders of the Debenture or the Trustee
would be entitled to receive from the Company, except for the
provisions of this Article Six, shall be paid by the Company or
by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by
the Holders of the Debentures or by the Trustee under this
Indenture if received by them or it, directly to the holders of
Senior Indebtedness of the Company (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held
by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing
such Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay
such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of Debentures or
to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee before all Senior
Indebtedness of the Company is paid in full, or provision is made
for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have been
issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior
Indebtedness of the Company, as the case may be, remaining unpaid
to the extent necessary to pay such Senior Indebtedness in full
in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such
Senior Indebtedness.
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For purposes of this Article Six, the words "cash, property or
securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article Six
with respect to the Debentures to the payment of all Senior
Indebtedness of the Company, as the case may be, that may at the
time be outstanding, provided that (i) such Senior Indebtedness
is assumed by the new corporation, if any, resulting from any
such reorganization or readjustment, and (ii) the rights of the
holders of such Senior Indebtedness are not, without the consent
of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety,
to another corporation upon the terms and conditions provided for
in Article Eight of the Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 6.3 if such other corporation shall, as
a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article Eight of the
Indenture. Nothing in Section 6.2 or in this Section 6.3 shall
apply to claims of, or payments to, the Trustee under or pursuant
to Section 606 of the Indenture.
SECTION 6.4. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the Holders of the Debentures shall be
subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash,
property or securities of the Company, as the case may be,
applicable to such Senior Indebtedness until the principal of
(and premium, if any) and interest on the Debentures shall be
paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the
Holders of the Debentures or the Trustee would be entitled except
for the provisions of this Article Six, and no payment over
pursuant to the provisions of this Article Six to or for the
benefit of the holders of such Senior Indebtedness by Holders of
the Debentures or the Trustee, shall, as between the Company, its
creditors other than Holders of Senior Indebtedness of the
Company, and the holders of the Debentures shall be deemed to be
a payment by the Company to or on account of such Senior
Indebtedness. It is understood that the provisions of this
Article Six are and are intended solely for the purposes of
defining the relative rights of the Holders of the Debentures, on
the one hand, and the holders of such Senior Indebtedness on the
other hand.
Nothing contained in this Article Six or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as
between the Company, its creditors other than the holders of
Senior Indebtedness of the Company, and the Holders of the
Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Debentures the
principal of (and premium, if any) and interest on the Debentures
as and when the same shall become due and payable in accordance
with their terms, or is intended
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to or shall affect the relative rights of the Holders of the
Debentures and creditors of the Company, as the case may be,
other than the holders of Senior Indebtedness of the Company, as
the case may be, nor shall anything herein or therein prevent
the Trustee or the Holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default
under the Indenture, subject to the rights, if any, under this
Article Six of the holders of such Senior Indebtedness in
respect of cash, property or securities of the Company, as the
case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Six, the Trustee, subject to the
provisions of Section 602 of the Indenture, and the Holders of
the Debentures shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or
to the Holders of the Debentures, for the purposes of
ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article Six.
SECTION 6.5. Trustee to Effectuate Subordination.
Each Holder of Debentures by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article Six and appoints the
Trustee such Holder's attorney-in-fact for any and all such
purposes.
SECTION 6.6. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that
would prohibit the making of any payment of monies to or by the
Trustee in respect of the Debentures pursuant to the provisions
of this Article Six. Notwithstanding the provisions of this
Article Six or any other provision of the Indenture and this
First Supplemental Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit
the making of any payment of monies to or by the Trustee in
respect of the Debentures pursuant to the provisions of this
Article Six, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the
Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written
notice, the Trustee, subject to the provisions of Section 602 of
the Indenture, shall be entitled in all respects to assume that
no such facts exist; provided, however, that, if the Trustee
shall not have received the notice provided for in this Section
6.6 at least two Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of
(or premium, if any) or interest on any
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Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purposes for
which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two
Business Days prior to such date.
The Trustee, subject to the provisions of Section 602 of the
Indenture, shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of
Senior Indebtedness of the Company, as the case may be (or a
trustee on behalf of such holder) to establish that such notice
has been given by a holder of such Senior Indebtedness or a
trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence
is required with respect to the right of any Person as a holder
of such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Six, the Trustee may
request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this
Article Six, and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 6.7. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article Six in respect of any Senior
Indebtedness at any time held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set
forth in this Article Six, and no implied covenants or
obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of such Senior Indebtedness and, subject to
the provisions of Section 602 of the Indenture, the Trustee shall
not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to Holders of Debentures, the Company
or any other Person money or assets to which any holder of such
Senior Indebtedness shall be entitled by virtue of this Article
Six or otherwise.
SECTION 6.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company, as the
case may be, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the
-15-
Company, as the case may be, with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may,
at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Debentures, without
incurring responsibility to the Holders of the Debentures and
without impairing or releasing the subordination provided in this
Article Six or the obligations hereunder of the Holders of the
Debentures to the holders of such Senior Indebtedness, do any one
or more the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any
manner such Senior Indebtedness or any instrument evidencing the
same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Senior
Indebtedness; (iii) release any Person liable in any manner for
the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company, as the
case may be, and any other Person.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Listing on an Exchange.
If the Debentures are to be issued as a Global Debenture in
connection with the distribution of the Debentures to the holders
of the Preferred Securities issued by the Trust upon a
Dissolution Event, the Company will use its best efforts to list
such Debentures on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed.
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following
forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT: This
Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name
of a Depository or a nominee of a Depository. This Debenture is
exchangeable for Debentures registered in the name of a person
other than
-16-
the Depository or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the
Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the
Depository) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration
of transfer, exchange or payment, and any Debenture issued is
registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.]
No._________________
$___________________
[CUSIP No.__________]
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE __________
Northwestern Public Service Company, a Delaware corporation (the
"Company", which term includes any successor corporation under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to , or registered assigns, the principal
sum of _______ Dollars on _______________, (or on such later date
before _______________, if the Company elects to extend the
maturity date as further described herein), and to pay interest
on said principal sum from _______________, 1995, or from the
most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth herein) in
arrears on March 31, June 30, September 30 and December 31 of
each year commencing _______________, 1995, at the rate of _____%
per annum until the principal hereof shall have become due and
payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of
twelve 30-day months. In the event that any date on which
interest is payable on this Debenture is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date. The interest installment so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose
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name this Debenture (or one or more Predecessor Debentures, as
defined in said Indenture) is registered at the close of
business on the regular record date for such interest
installment, which shall be the close of business on the
business day next preceding such Interest Payment Date. Any
such interest installment not punctually paid or duly provided
for shall forthwith cease to be payable to the registered
Holders on such regular record date and may be paid to the
Person in whose name this Debenture (or one or more Predecessor
Debentures) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the
registered Holders of this series of Debentures not less than 10
days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The
principal of (and premium, if any) and the interest on this
Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of
the United States of America that at the time of payment is
legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of
the Company by check mailed to the registered Holder at such
address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this
Debenture is the Property Trustee, the payment of the principal
of (and premium, if any) and interest on this Debenture will be
made at such place and to such account as may be designated by
the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness,
and this Debenture is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his or her attorney-in-fact for any and all
such purposes. Each Holder hereof, by his or her acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory
for any purpose until the Certificate of Authentication hereon
shall have been signed by or on behalf of the Trustee.
Unless the Certificate of Authentication hereon has been executed
by the Trustee referred to on the reverse side hereof, this
Debenture shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
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The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated:_______________
NORTHWESTERN PUBLIC SERVICE COMPANY
By:__________________________________
Attest:
By:___________________
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
___________________________
as Trustee or as Authentication Agent
By:________________________ By:___________________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures
of the Company (herein sometimes referred to as the
"Debentures"), specified in the Indenture, all issued or to be
issued in one or more series under and pursuant to an Indenture
dated as of _______________, 1995, duly executed and delivered
between the Company and ____________________, as Trustee (the
"Trustee"), as supplemented by the First
-19-
Supplemental Indenture dated as of _______________, 1995,
between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and
the Holders of the Debentures. By the terms of the Indenture,
the Debentures are issuable in series that may vary as to
amount, date of maturity, rate of interest and in other respects
as provided in the Indenture. This series of Debentures is
limited in aggregate principal amount as specified in said First
Supplemental Indenture.
Because of the occurrence and continuation of a Tax Event, in
certain circumstances, this Debenture will become due and payable
at the principal amount together with any interest accrued
thereon (the "Redemption Price"). The Redemption Price shall be
paid prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines.
The Company shall have the right to redeem this Debenture at the
option of the Company, without premium or penalty, in whole or in
part at any time on or after _______________, (an "Optional
Redemption") or at any time in certain circumstances upon the
occurrence of a Tax Event, at a redemption price equal to 100% of
the principal amount plus any accrued but unpaid interest, to the
date of such redemption (the "Optional Redemption Price"). Any
redemption pursuant to this paragraph will be made upon not less
than 30 nor more than 60 days' notice, at the Optional Redemption
Price. If the Debentures are only partially redeemed by the
Company pursuant to an Optional Redemption, the Debentures will
be redeemed pro rata or by lot or by any other method utilized by
the Trustee; provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depository
shall determine by lot the principal amount of such Debentures
held by each Debentureholder to be redeemed.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the
Debentures may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Debentures of each
series affected at the time outstanding, as defined in the
Indenture, to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders
of the Debentures; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debentures
of any series, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or
reduce any premium payable upon the
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redemption thereof, without the consent of the Holder of each
Debenture so affected, or (ii) reduce the aforesaid percentage
of Debentures, the Holders of which are required to consent to
any such supplemental indenture, without the consent of the
Holders of each Debenture then outstanding and affected thereby.
The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the Debentures of
any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Debentures of such series, to waive
any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium,
if any, or interest on any of the Debentures of such series.
Any such consent or waiver by the registered Holder of this
Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future
Holders and owners of this Debenture and of any Debenture issued
in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on this
Debenture at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right at any time during the term of
the Debentures from time to time to extend the interest payment
period of such Debentures to up to 20 consecutive quarters (an
"Extended Interest Payment Period"), at the end of which period
the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any
such Extended Interest Payment Period, the Company may further
extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further
extensions thereof shall not exceed 20 consecutive quarters. At
the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new
Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the
registered Holder hereof on the Security Register of the Company,
upon surrender of this Debenture for registration of transfer at
the office or agency of the Company in the City and State of New
York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Debentures
of authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation
thereto.
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Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any
Security Registrar may deem and treat the registered holder
hereof as the absolute owner hereof (whether or not this
Debenture shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest
due hereon and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Debenture Registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of
any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
The Debentures of this series are issuable only in registered
form without coupons in denominations of $25 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations herein and therein set forth, Debentures of
this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different
authorized denomination, as requested by the Holder surrendering
the same.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ARTICLE IX
ORIGINAL ISSUE OF DEBENTURES
SECTION 9.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $__________ may,
upon execution of this First Supplemental Indenture, be executed
by the Company and delivered to the Trustee for authentication, and
the Trustee shall thereupon authenticate and deliver said
Debentures to or upon the written order of the Company, signed by
its Chairman, its President, or any Vice President and its
Treasurer or an Assistant Treasurer, without any further action
by the Company.
-22-
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this
First Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein
provided.
SECTION 10.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to
the validity or sufficiency of this First Supplemental Indenture.
SECTION 10.3. Governing Law.
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State
of New York, and for all purposes shall be construed in
accordance with the laws of said State.
SECTION 10.4. Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason
be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect
any other provisions of this First Supplemental Indenture or of
the Debentures, but First Supplemental Indenture and the
Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or
therein.
SECTION 10.5. Counterparts.
This First Supplemental Indenture may be executed in any number
of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
-23-
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, on the date
or dates indicated in the acknowledgements and as of the day and
year first above written.
NORTHWESTERN PUBLIC SERVICE COMPANY
By:________________________________
Name:
Title:
Attest:__________________
Secretary
THE CHASE MANHATTAN BANK (N.A.)
By:_________________________________
Name:
Title:
Attest:___________________
Secretary
-24-
STATE OF )
COUNTY OF ) ss.:
On the day of __________, 1995, before me personally
________________________________ came to be known, who, being by
me duly sworn, did depose and say that he is the
__________________________________ of Northwestern Public
Service Company, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal
of said corporation; that the seal affixed to the said
instrument is such corporation seal; that it was so affixed by
authority of the Board of Directors of said corporation, and
that he signed his name thereto by like authority.
NOTARY PUBLIC
seal Commission expires
STATE OF )
COUNTY OF ) SS.:
On the day of _______________, 1995, before me personally
_____________________________came to be known, who, being by me
duly sworn, did depose and say that he is the
____________________ of _________________________, one of the
corporations described in and which executed the above
instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is
such corporation seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
NOTARY PUBLIC
seal Commission expires
-25-