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NORTHWESTERN CORPORATION
TO
JPMORGAN CHASE BANK
as Trustee
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SUPPLEMENTAL INDENTURE
Providing, among other things, for
New Mortgage Bonds, Credit Agreement (2002) Series, due 2006
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Dated as of February 1, 2003
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SUPPLEMENTAL INDENTURE, dated as of February 1, 2003 (this "Supplemental
Indenture"), made by and between NORTHWESTERN CORPORATION (formerly known as
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 125 S. Dakota Avenue, Suite 1100, Sioux Falls, South Dakota 57104, and
JPMORGAN CHASE BANK (successor by merger to The Chase Manhattan Bank (National
Association)), a bank organized and existing under the laws of the State of New
York (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 New York Plaza, 15th Floor, New York, New York 10004;
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 five indentures supplemental to the Original Indenture, the first dated
as of August 15, 1993, the second dated as of August 1, 1995 and each of the
third, fourth and fifth dated as of September 1, 1995 (the Original Indenture,
as supplemented and amended by the aforementioned five supplemental indentures
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, Credit Agreement
(2002) Series, due 2006 (the "New Mortgage Bonds of the Credit Agreement (2002)
Series"); 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 Corporation, in consideration of the acceptance or the
purchase and ownership (as applicable) 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 NEW MORTGAGE BONDS OF THE CREDIT
AGREEMENT (2002) SERIES
SECTION 1. The Company hereby creates a new series of Bonds to be known
as "New Mortgage Bonds, Credit Agreement (2002) Series, due 2006." The New
Mortgage Bonds of the Credit Agreement (2002) 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 aggregate principal amount of New
Mortgage Bonds of the Credit Agreement (2002) Series which may be authenticated
and delivered under the Indenture (except for New Mortgage Bonds of the Credit
Agreement (2002) Series authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other New Mortgage Bonds of the
Credit Agreement (2002) Series pursuant to the Indenture and except for New
Mortgage Bonds of the Credit Agreement (2002) Series which, pursuant to the
Indenture, are deemed never to have been authenticated and delivered under the
Indenture) is limited to $110,000,000.
New Mortgage Bonds of the Credit Agreement (2002) Series shall be issued
to Credit Suisse First Boston, acting through its Cayman Islands Branch, as
collateral agent (together with its successors in such capacity, the "Collateral
Agent") under the Bond Collateral Agreement, dated as of February 10, 2003 (as
amended or otherwise modified, or as waived, or as replaced, in each case, from
time to time in accordance with its terms, the "Collateral Agreement"), between
the Company and the Collateral Agent, to secure the obligations of the Company
to pay when due the Applicable Share (as hereinafter defined) of the principal
of and interest on the loans (the "Loans") made and outstanding under the Credit
Agreement, dated as of December 17, 2002 (as amended or otherwise modified, or
as waived, or as replaced, in each case, from time to time in accordance with
its terms, the "Credit Agreement"), among the Company, as borrower, the several
lenders from time to time parties thereto (the "Lenders") and Credit Suisse
First Boston, acting through its Cayman Islands Branch, as administrative agent
(together with its successors in such capacity, the "Administrative Agent").
As used herein, "Applicable Share" means, as of any day, a fraction
(expressed as a percentage rounded to the eighth decimal place), (i) the
numerator of which is the aggregate principal amount of the New Mortgage Bonds
of the Credit Agreement (2002) Series that are Outstanding on such day, and (ii)
the denominator of which is the sum of (a) the aggregate principal amount of the
New Mortgage Bonds of the Credit Agreement (2002) Series that are Outstanding on
such day, plus (b) the aggregate principal amount of the First Mortgage Bonds,
Credit Agreement (2002) Series, due 2006, of the Company (the "Montana Credit
Agreement Bonds") that are outstanding on such day under the Company's Mortgage
and Deed of Trust, dated as of October 1, 1945, relating (among other things) to
property acquired by the Company from NorthWestern Energy, L.L.C., which in turn
acquired such property from The Montana Power Company (as amended and
supplemented, the "Montana Mortgage"). Initially, the Applicable Share will be
28.20512821% (being the expression as a percentage (rounded to the eighth
decimal place) of a fraction, the numerator of which is $110,000,000 (the
aggregate principal
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amount of the New Mortgage Bonds of the Credit Agreement (2002) Series that are
to be issued and become Outstanding) and the denominator of which is
$390,000,000 (the sum of $110,000,000, the aggregate principal amount of the New
Mortgage Bonds of the Credit Agreement (2002) Series that are to be issued and
become Outstanding, plus $280,000,000, the aggregate principal amount of the
Montana Credit Agreement Bonds that are to be issued and become outstanding
under the Montana Mortgage simultaneously with the issuance of the New Mortgage
Bonds of the Credit Agreement (2002) Series). Pursuant to the Collateral
Agreement, the Collateral Agent will furnish to the Trustee (with a copy to the
Company) as soon as practicable after any change in the Applicable Share, a
certificate, signed by a person purporting to be its duly authorized officer,
notifying the Trustee of such change in the Applicable Share (an "Applicable
Share Certificate"). Each Applicable Share Certificate shall set forth (i) the
changed Applicable Share, (ii) the date such change occurred, (iii) the
aggregate principal amount of the New Mortgage Bonds of the Credit Agreement
(2002) Series then Outstanding, and (iv) the aggregate principal amount of the
Montana Credit Agreement Bonds then outstanding under the Montana Mortgage. The
Trustee may conclusively presume that the Applicable Share is 28.20512821%
unless and until the Trustee receives an Applicable Share Certificate. Following
receipt by the Trustee of an Applicable Share Certificate, the Trustee may
conclusively presume that the Applicable Share is as set forth in such
Applicable Share Certificate unless and until the Trustee receives a subsequent
Applicable Share Certificate.
New Mortgage Bonds of the Credit Agreement (2002) Series shall mature on
December 1, 2006 (the "Maturity Date"), with an installment of principal of the
New Mortgage Bonds of the Credit Agreement (2002) Series in an amount equal to
$275,000 (said amount representing one quarter of one percent (0.25%) of the
original aggregate principal amount of the New Mortgage Bonds of the Credit
Agreement (2002) Series) being payable on the last Business Day (as hereinafter
defined) of each March, June, September and December occurring prior to the
Maturity Date, commencing March 31, 2003, and the balance of the principal of
the New Mortgage Bonds of the Credit Agreement (2002) Series being payable on
the Maturity Date; in each case, unless an equal installment or balance of the
principal of the Loans is not due and payable on such Business Day or the
Maturity Date, as applicable, in accordance with the Credit Agreement by reason
of prior prepayment of the Loans (in which event, there shall be due and payable
on the New Mortgage Bonds of the Credit Agreement (2002) Series on such Business
Day or on the Maturity Date, as applicable, an amount of principal of said bonds
equal to the Applicable Share of the amount of principal of the Loans that is
payable on such Business Day or on the Maturity Date, as applicable, in
accordance with the Credit Agreement); the unpaid principal amount of the New
Mortgage Bonds of the Credit Agreement (2002) Series shall bear interest at one
or more variable interest rates per annum which rate or rates for each day shall
be equal to the rate or rates per annum borne by the Loans in accordance with
the Credit Agreement for such day (calculated in the manner provided in the
Credit Agreement for the calculation of interest on the Loans), payable on each
day on which interest is payable on the Loans in accordance with the Credit
Agreement (and in an amount equal to the Applicable Share of the amount of
interest that is payable on the Loans on such day in accordance with the Credit
Agreement) to the Collateral Agent, as the registered owner, without regard to,
or
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necessity for, any record date; the principal of and interest on each said Bond
to be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for public and private
debts. New Mortgage Bonds of the Credit Agreement Series (2002) shall be dated
as in Section 3.03(c) of the Original Indenture (as supplemented) provided. As
used herein, "Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
As permitted pursuant to Sections 3.01 and 5.06 of the Mortgage (as
supplemented), scheduled amortization payments with respect to the New Mortgage
Bonds of the Credit Agreement (2002) Series (as specified for the New Mortgage
Bonds of the Credit Agreement (2002) Series prior to the Maturity Date pursuant
to the preceding paragraph of this Section 1) shall not constitute redemption in
part of the New Mortgage Bonds of the Credit Agreement (2002) Series for
purposes of Section 5.06 of the Mortgage (as supplemented) (and, therefore,
surrender of the New Mortgage Bonds of the Credit Agreement (2002) Series shall
not be a condition to the receipt by the registered owners of the New Mortgage
Bonds of the Credit Agreement (2002) Series of such scheduled amortization
payments).
SECTION 2. New Mortgage Bonds of the Credit Agreement (2002) Series
shall be issued only as registered Bonds without coupons of the denomination of
$1,000, or any integral multiple of $1 in excess of $1,000, appropriately
numbered. New Mortgage Bonds of the Credit Agreement (2002) Series may be
exchanged, upon surrender thereof, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, State of New York, for one or more
New Mortgage Bonds of the Credit Agreement (2002) 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 Credit Agreement (2002) Series shall not be
transferable except to any successor Collateral Agent under the Collateral
Agreement; provided, however, that, subject to compliance with the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
(i) on or after the day on which the Loans are accelerated in accordance with
the Credit Agreement (the "Acceleration Day"), all (but not less than all) of
the New Mortgage Bonds of the Credit Agreement (2002) Series shall be
transferable by the Collateral Agent (together with all (but not less than all)
of the Montana Credit Agreement Bonds) to or upon the order of the Lenders in
full satisfaction and discharge of the Loans and the Obligations (as defined in
the Collateral Agreement) pursuant to Section 4.1 of the Collateral Agreement,
and (ii) following such transfer by the Collateral Agent, New Mortgage Bonds of
the Credit Agreement (2002) Series shall be transferable (without restriction
(except as hereinafter in the following two paragraphs described)) by the
registered owners thereof.
As a condition precedent to any transfer of the New Mortgage Bonds of
the Credit Agreement (2002) Series by the Collateral Agent, the Collateral Agent
shall submit to the Company, the Trustee and the Bond Registrar (in addition to
all other documents and instruments required to be submitted to the Bond
Registrar pursuant to the Indenture) a
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certificate of the Collateral Agent, signed by a person purporting to be its
duly authorized officer, certifying that the transferee in such transfer is a
successor Collateral Agent under the Collateral Agreement or that the
transferees in such transfer are the Lenders or Persons specified by the Lenders
to which on or after the Acceleration Day all (but not less than all) of the New
Mortgage Bonds of the Credit Agreement (2002) Series and all (but not less than
all) of the Montana Credit Agreement Bonds are being transferred in full
satisfaction and discharge of the Loans and the Obligations (as defined in the
Collateral Agreement) pursuant to Section 4.1 of the Collateral Agreement (and
the Trustee and the Bond Registrar may conclusively presume the statements in
any such certificate of the Collateral Agent to be correct). As a condition
precedent to the transfer of any New Mortgage Bond of the Credit Agreement
(2002) Series to a transferee other than a successor Collateral Agent, the
transferor in such transfer shall deliver to the Company, the Trustee and the
Bond Registrar (in addition to all other documents and instruments required to
be submitted to the Bond Registrar pursuant to the Indenture) (i) an opinion of
counsel reasonably satisfactory to the Company, the Trustee and the Bond
Registrar, or (ii) a certificate of the transferor in such transfer, signed by a
person purporting to be its duly authorized officer, reasonably satisfactory to
the Company, the Trustee and the Bond Registrar, in either case, to the effect
that such transfer is either (A) covered by an effective registration statement
of the Company under the Securities Act (setting forth the registration number
and the date of effectiveness of such registration statement), or (B) exempt
from registration under the Securities Act (setting forth the applicable
exemption from registration being relied upon and the reason such exemption is
applicable to such transfer).
Any transfer of New Mortgage Bonds of the Credit Agreement (2002) Series
(i) shall be subject to the provisions of Section 3.05 of the Indenture, except
that the provisions of paragraph (g) of such Section 3.05 shall not be
applicable to any transfer of New Mortgage Bonds of the Credit Agreement (2002)
Series which occurs on or prior to the Remedy Exercise Day (as hereinafter
defined) (and the Company hereby waives the provisions of such paragraph with
respect to any such transfer), and (ii) shall be made at the office or agency of
the Company in the Borough of Manhattan, The City of New York.
The Company hereby waives any right to make any charge for any exchange
or transfer of New Mortgage Bonds of the Credit Agreement (2002) Series by the
Collateral Agent or any Person that is a direct transferee of the Collateral
Agent (but not by any other transferee of New Mortgage Bonds of the Credit
Agreement (2002) Series), whether to reimburse itself for any tax or taxes or
other governmental charge or otherwise (it being understood that the Company
shall pay any tax or taxes or governmental or other charge which may be payable
by reason of any exchange or transfer of New Mortgage Bonds of the Credit
Agreement (2002) Series by the Collateral Agent or any Person that is a direct
transferee of the Collateral Agent). However, the Company reserves the right to
require payment of a sum sufficient to cover any tax or taxes or governmental or
other charge that may be imposed in connection with any transfer or exchange of
New Mortgage Bonds of the Credit Agreement (2002) Series by any registered owner
other than the Collateral Agent or any Person that is a direct transferee
5
of the Collateral Agent, other than any exchange pursuant to Section 3.04, 5.06
or 14.06 of the Indenture not involving any transfer.
The Company has appointed JPMorgan Chase Bank as its agent to receive
New Mortgage Bonds of the Credit Agreement (2002) Series presented or
surrendered for payment, to receive New Mortgage Bonds of the Credit Agreement
(2002) Series surrendered for registration of transfer or exchange and to
receive notices and demands to or upon the Company in respect of the New
Mortgage Bonds of the Credit Agreement (2002) Series and the Indenture; and the
corporate trust office of JPMorgan Chase Bank in the Borough of Manhattan, The
City of New York, State of New York shall be the office or agency of the Company
in the Borough of Manhattan, The City of New York, State of New York at which
such presentations, surrenders, notices and demands may be made or served.
SECTION 3. The New Mortgage Bonds of the Credit Agreement (2002) Series
and the Trustee's Certificate of Authentication shall be substantially in the
following forms respectively:
[The form of the New Mortgage Bond of the Credit Agreement (2002) Series
begins on the following page of this Supplemental Indenture.]
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[FORM OF BOND OF THE CREDIT AGREEMENT (2002) SERIES, DUE 2006]
TRANSFER OF THIS BOND IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER
CONTAINED IN THE INDENTURE TO WHICH REFERENCE IS MADE IN THIS BOND.
THE TRANSFER RESTRICTIONS ARE DESCRIBED ON THE REVERSE OF THIS BOND.
NORTHWESTERN CORPORATION
(Incorporated under the laws of the State of Delaware)
NEW MORTGAGE BOND, CREDIT AGREEMENT (2002) SERIES, DUE 2006
No. R- $_____________
NorthWestern Corporation, 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 Credit Suisse First Boston, acting
through its Cayman Islands Branch, as collateral agent under the Bond Collateral
Agreement to which reference is hereinafter made, or (subject to the transfer
restrictions described on the reverse hereof) registered assigns, the sum of
_________ dollars, in installments prior to, and the balance on, the first day
of December, 2006 (the "Maturity Date"), in each case, in such amount as is
described on the reverse hereof for such installment or such balance, as
applicable, and 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 as described on the reverse hereof in like coin or currency.
The Bonds of the series of which this Bond is one have been issued to
Credit Suisse First Boston, acting through its Cayman Islands Branch, as
collateral agent (together with its successors in such capacity, the "Collateral
Agent") under the Bond Collateral Agreement, dated as of the date set forth on
the reverse hereof (as amended or otherwise modified, or as waived, or as
replaced, in each case, from time to time in accordance with its terms, the
"Collateral Agreement"), between the Company and the Collateral Agent, to secure
the obligations of the Company to pay when due the Applicable Share (as
hereinafter defined) of the principal of and interest on the loans (the "Loans")
made and outstanding under the Credit Agreement, dated as of December 17, 2002
(as amended or otherwise modified, or as waived, or as replaced, in each case,
from time to time in accordance with its terms, the "Credit Agreement"), among
the Company, as borrower, the several lenders from time to time parties thereto
(the "Lenders") and Credit Suisse First Boston, acting through its Cayman
Islands Branch, as administrative agent (together with its successors in such
capacity, the "Administrative Agent").
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 herein shall have been signed by
or on behalf of JPMorgan Chase Bank, 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 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 Corporation has caused this 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 CORPORATION
By____________________________________
Authorized Executive Officer
ATTEST:
By____________________________________
Authorized Executive Officer
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Bonds of the series designated therein referred to in
the within-mentioned Indenture and Supplemental Indenture dated as of February
1, 2003.
JPMORGAN CHASE BANK, AS TRUSTEE
By____________________________________
Authorized Officer
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[FORM OF REVERSE OF BOND]
Indenture and Series Designation
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This Bond 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 (under its
then name, NorthWestern Public Service Company) to The Chase Manhattan Bank
(National Association), the predecessor to JPMorgan Chase Bank (the "Trustee"),
as Trustee, to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the properties mortgaged and pledged, the
nature and extent of the security, the rights of 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 (and for the definition of any capitalized
term used herein but not defined herein (with any term defined herein and in the
Indenture being used herein as defined herein)). 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 Bond is one of a series designated as the "New Mortgage Bonds, Credit
Agreement (2002) Series, due 2006" (the "New Mortgage Bonds of the Credit
Agreement (2002) Series") of the Company issued under and secured by the
Indenture and described in the supplemental indenture dated as of February 1,
2003 (the "Supplemental Indenture") between the Company and the Trustee,
supplemental to the Indenture.
Issuance to Collateral Agent under Collateral Agreement
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The Bonds of the Credit Agreement (2002) Series have been issued to the
Collateral Agent under the Collateral Agreement to secure the obligations of the
Company to pay when due the Applicable Share (as hereinafter defined) of the
principal of and interest on the Loans made and outstanding under the Credit
Agreement. The Collateral Agreement is dated as of February 10, 2003.
Principal
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Principal of the New Mortgage Bonds of the Credit Agreement (2002)
Series, of which this Bond is one, is scheduled to be paid as follows: (A) on
the last Business Day (as hereinafter defined) of each March, June, September
and December occurring prior to the Maturity Date (commencing March 31, 2003),
an installment of principal of the New Mortgage Bonds of the Credit Agreement
(2002) Series in an amount equal to $275,000 (said amount representing one
quarter of one percent (0.25%) of the original aggregate principal amount of the
New Mortgage Bonds of the Credit Agreement (2002) Series) is due and payable;
and (B) on December 1, 2006 (the "Maturity Date"), the balance of the principal
of the New Mortgage Bonds of the Credit Agreement (2002) Series is due and
payable; in each case, unless an equal installment or balance of the principal
of the Loans is not due and payable on such Business Day or the Maturity Date,
as applicable, in accordance with the Credit Agreement by reason of prior
prepayment of the Loans (in which event, there shall be due and payable on the
New Mortgage Bonds of the Credit Agreement (2002) Series on such Business Day or
on the Maturity Date, as applicable, an
8
amount of principal of said Bonds equal to the Applicable Share of the amount of
principal of the Loans that is payable on such Business Day or on the Maturity
Date, as applicable, in accordance with the Credit Agreement). As used herein,
"Business Day" means a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close.
Interest
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The unpaid principal amount of the New Mortgage Bonds of the Credit
Agreement (2002) Series, of which this Bond is one, bears interest at one or
more variable interest rates per annum which rate or rates for each day shall be
equal to the rate or rates per annum borne by the Loans in accordance with the
Credit Agreement for such day (calculated in the manner provided in the Credit
Agreement for the calculation of interest on the Loans), payable on each day on
which interest is payable on the Loans in accordance with the Credit Agreement
(and in an amount equal to the Applicable Share of the amount of interest that
is payable on the Loans on such day in accordance with the Credit Agreement) to
the Collateral Agent, as the registered owner, without regard to, or necessity
for, any record date.
Applicable Share
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As used herein, "Applicable Share" means, as of any day, a fraction
(expressed as a percentage rounded to the eighth decimal place), (i) the
numerator of which is the aggregate principal amount of the New Mortgage Bonds
of the Credit Agreement (2002) Series that are Outstanding on such day, and (ii)
the denominator of which is the sum of (a) the aggregate principal amount of the
New Mortgage Bonds of the Credit Agreement (2002) Series that are Outstanding on
such day, plus (b) the aggregate principal amount of the First Mortgage Bonds,
Credit Agreement (2002) Series, due 2006, of the Company (the "Montana Credit
Agreement Bonds") that are outstanding on such day under the Company's Montana
Mortgage (as defined in the Supplemental Indenture).
Redemption
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New Mortgage Bonds of the Credit Agreement (2002) Series, of which this
Bond is one, are subject to redemption as follows (but shall not otherwise be or
become subject to redemption, whether at the option of the holders thereof or
the Company or pursuant to any other requirements or provisions of the
Indenture): (A) on each day on which the Loans are subject to prepayment in
accordance with the Credit Agreement, New Mortgage Bonds of the Credit Agreement
(2002) Series shall be subject to redemption in an aggregate principal amount
equal to the Applicable Share of the aggregate principal amount of the Loans
that are so subject to prepayment on such day; and (B) on the day on which the
Loans are accelerated in accordance with the Credit Agreement (the "Acceleration
Day"), the entire aggregate principal amount of the New Mortgage Bonds of the
Credit Agreement (2002) Series shall be subject to redemption (the "Acceleration
Redemption"); in each case, without any necessity for notice or call by the
Trustee (such notice and call being waived by the registered owners of the New
Mortgage Bonds of the Credit Agreement (2002) Series by the acceptance of the
New Mortgage Bonds of the Credit Agreement (2002) Series and in connection with
each Redemption Demand (as
9
hereinafter defined)). Redemption of New Mortgage Bonds of the Credit Agreement
(2002) Series, of which this Bond is one, shall be at a redemption price equal
to the principal amount of such New Mortgage Bonds of the Credit Agreement
(2002) Series (without premium), together with interest accrued on said
principal to and including the date of redemption (collectively, a "Redemption
Amount"). In the event of any failure by the Company to pay when due the
Redemption Amount with respect to any redemption of New Mortgage Bonds of the
Credit Agreement (2002) Series, interest shall accrue on such unpaid Redemption
Amount at the rate or rates (and in amounts equal to the Applicable Share of the
amounts) of interest that accrue on the corresponding unpaid principal of and
interest on the Loans in accordance with the Credit Agreement.
The Trustee may conclusively presume that no redemption of New Mortgage
Bonds of the Credit Agreement (2002) Series is required unless and until it
shall have received a written notice from the Administrative Agent, signed by a
person purporting to be its duly authorized officer, stating that the Loans are
subject to prepayment or have been accelerated, in either case, in accordance
with the Credit Agreement (a "Redemption Demand"). Each Redemption Demand also
shall state the date on which the Loans are subject to prepayment or
acceleration in accordance with the Credit Agreement, the principal amount of
the Loans subject to such prepayment or acceleration on such date, the principal
amount of the New Mortgage Bonds of the Credit Agreement (2002) Series to be
redeemed on such date in accordance with the Supplemental Indenture by reason of
such prepayment or acceleration, and the Redemption Amount payable with respect
to such New Mortgage Bonds of the Credit Agreement (2002) Series (determined in
accordance with the Supplemental Indenture and setting forth the amounts of the
respective portions thereof representing principal of and interest on such New
Mortgage Bonds of the Credit Agreement (2002) Series). Each Redemption Demand
shall be accompanied by a written waiver by the Collateral Agent, as registered
owner of all of the New Mortgage Bonds of the Credit Agreement (2002) Series
then Outstanding, of notice of redemption and call for redemption by the Trustee
of the New Mortgage Bonds of the Credit Agreement (2002) Series subject to
redemption as described in such Redemption Demand. The Trustee may conclusively
presume the statements contained in each Redemption Demand to be correct.
Additional Terms
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New Mortgage Bonds of the Credit Agreement (2002) Series shall be
subject to the following other terms and conditions:
(I) For the avoidance of any doubt (in the case of the following clauses
(i) and (ii)) and notwithstanding anything herein or in the Supplemental
Indenture to the contrary other than the provisions of subdivision (III) below
(in the case of the following clause (iii)): (i) prior to the Remedy Exercise
Day (as hereinafter defined), each payment of principal of or interest on the
New Mortgage Bonds of the Credit Agreement (2002) Series that becomes due and
payable on any day (whether by reason of stated due date, acceleration,
redemption or otherwise) shall correspond to, and be equal to the Applicable
Share of, a payment of principal of or interest on the Loans that becomes due
and payable on such day in accordance with the Credit Agreement; (ii) on the
Acceleration Day, the
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Redemption Amount with respect to the Acceleration Redemption shall be due and
payable; and (iii) on and after the Remedy Exercise Day (as hereinafter
defined), (a) the Redemption Amount with respect to the Acceleration Redemption
shall bear interest (to the extent permitted by law in the case of interest on
the portion of the Redemption Amount representing interest on the applicable
Bonds) at a variable rate per annum which rate for each day shall be equal to
the Prime-Based Rate (as defined in the Supplemental Indenture and as calculated
by the Trustee) for such day plus 6.75%, payable to the registered owners of the
New Mortgage Bonds of the Credit Agreement (2002) Series in the manner provided
in Section 3.07(b) of the Original Indenture (as supplemented) or Section 10.07
of the Original Indenture (as supplemented), whichever is applicable, and (b)
payments of principal of and interest on the New Mortgage Bonds of the Credit
Agreement (2002) Series shall cease to correspond to payments of principal of
and interest on the Loans (and shall not be satisfied and discharged by the
satisfaction and discharge of the Loans).
As used herein, "Remedy Exercise Day" means the day (on or after the
Acceleration Day) on which all (but not less than all) of the New Mortgage Bonds
of the Credit Agreement (2002) Series and all (but not less than all) of the
Montana Credit Agreement Bonds are transferred by the Collateral Agent to or
upon the order of the Lenders in full satisfaction and discharge of the Loans
and the Obligations (as defined in the Collateral Agreement) pursuant to Section
4.1 of the Collateral Agreement (as such transfer is evidenced by the
registration in the names of the transferees in such transfer of certificates
evidencing all (but not less than all) of the New Mortgage Bonds of the Credit
Agreement (2002) Series and all (but not less than all) of the Montana Credit
Agreement Bonds). The Trustee may conclusively presume that the Remedy Exercise
Day has not occurred unless and until it shall have received a written notice
from the Collateral Agent, signed by a person purporting to be its duly
authorized officer, stating that the Remedy Exercise Day has occurred (the
"Remedy Exercise Day Notice"). The Remedy Exercise Day Notice (i) shall set
forth the date of the Remedy Exercise Day, (ii) in the case of any such transfer
with respect to which the Trustee is not the transfer agent, have attached
thereto, as evidence of the transfer of the New Mortgage Bonds of the Credit
Agreement (2002) Series and the Montana Credit Agreement Bonds that gave rise to
the occurrence of the Remedy Exercise Day, copies of certificates registered in
the names of the transferees in such transfer of all (but not less than all) of
the New Mortgage Bonds of the Credit Agreement (2002) Series and all (but not
less than all) of the Montana Credit Agreement Bonds, and (iii) if the Remedy
Exercise Day Notice is received by the Trustee on a day other than the Remedy
Exercise Day, the Prime Rate (as defined in the Supplemental Indenture) for each
day on and after the Remedy Exercise Day and on and prior to the Business Day on
which the Trustee received the Remedy Exercise Day Notice. The Trustee may
conclusively presume the statements in the Remedy Exercise Day Notice to be
correct.
(II) Prior to the Remedy Exercise Day, the obligation of the Company to
make each payment of principal of or interest on the New Mortgage Bonds of the
Credit Agreement (2002) Series that becomes due and payable in accordance with
the Supplemental Indenture (i) shall be fully satisfied and discharged if the
corresponding payment of the principal of or interest on the Loans shall have
been fully paid under and
11
in accordance with the Credit Agreement, and (ii) shall be partially satisfied
and discharged if the corresponding payment of the principal of or interest on
the Loans shall have been partially paid under and in accordance with the Credit
Agreement (such partial satisfaction and discharge with respect to the New
Mortgage Bonds of the Credit Agreement (2002) Series to be in an amount equal to
the Applicable Share of the amount of such partial payment with respect to the
Loans). Without limitation of the foregoing, and for the avoidance of any doubt,
it is expressly stated that, prior to the Remedy Exercise Day, the Trustee shall
not be responsible for (i) the calculation of interest on the New Mortgage Bonds
of the Credit Agreement (2002) Series, or (ii) the determination of any amount
(including, without limitation, any principal of or interest on the Loans) that
is payable or paid under the Credit Agreement.
(III) Nothing in any of the New Mortgage Bonds of the Credit Agreement
(2002) Series (including, without limitation, any reference to the principal
payable with respect to the New Mortgage Bonds of the Credit Agreement (2002)
Series being determined on the basis of the Applicable Share of the principal
payable with respect to the Loans) shall, or shall be deemed or construed to,
(i) increase the aggregate principal amount of the New Mortgage Bonds of the
Credit Agreement (2002) Series that are Outstanding from time to time, (ii)
cause or permit an amount of principal of the New Mortgage Bonds of the Credit
Agreement (2002) Series to be or to become due and payable which, when added to
all other principal of such Bonds theretofore paid, exceeds $110,000,000, or
(iii) cause or permit to be or become due and payable interest on the New
Mortgage Bonds of the Credit Agreement (2002) Series which is payable on any
principal of the New Mortgage Bonds of the Credit Agreement (2002) Series that
is in excess of the principal of the New Mortgage Bonds of the Credit Agreement
(2002) Series as restricted pursuant to the preceding clauses (i) and (ii).
Transfer Restrictions
- ---------------------
New Mortgage Bonds of the Credit Agreement (2002) Series shall not be
transferable except to any successor Collateral Agent under the Collateral
Agreement; provided, however, that, subject to compliance with the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
(i) on or after the Acceleration Day, all (but not less than all) of the New
Mortgage Bonds of the Credit Agreement (2002) Series (together with all (but not
less than all) of the Montana Credit Agreement Bonds) shall be transferable by
the Collateral Agent to or upon the order of the Lenders in full satisfaction
and discharge of the Loans and the Obligations (as defined in the Collateral
Agreement) pursuant to Section 4.1 of the Collateral Agreement, and (ii)
following such transfer by the Collateral Agent, New Mortgage Bonds of the
Credit Agreement (2002) Series shall be transferable (without restriction
(except as hereinafter in the following two paragraphs described)) by the
registered owners thereof.
As a condition precedent to any transfer of the New Mortgage Bonds of
the Credit Agreement (2002) Series by the Collateral Agent, the Collateral Agent
shall submit to the Company, the Trustee and the Bond Registrar (in addition to
all other documents and instruments required to be submitted to the Bond
Registrar pursuant to the Indenture) a certificate of the Collateral Agent,
signed by a person purporting to be its duly authorized
12
officer, certifying that the transferee in such transfer is a successor
Collateral Agent under the Collateral Agreement or that the transferees in such
transfer are the Lenders or Persons specified by the Lenders to which on or
after the Acceleration Day all (but not less than all) of the New Mortgage Bonds
of the Credit Agreement (2002) Series and all (but not less than all) of the
Montana Credit Agreement Bonds are being transferred in full satisfaction and
discharge of the Loans pursuant to Section 4.1 of the Collateral Agreement (and
the Trustee and the Bond Registrar may conclusively presume the statements in
any such certificate of the Collateral Agent to be correct). As a condition
precedent to the transfer of any New Mortgage Bond of the Credit Agreement
(2002) Series to a transferee other than a successor Collateral Agent, the
transferor shall deliver to the Company, the Trustee and the Bond Registrar (in
addition to all other documents and instruments required to be submitted to the
Bond Registrar pursuant to the Indenture) (i) an opinion of counsel reasonably
satisfactory to the Company, the Trustee and the Bond Registrar, or (ii) a
certificate of the transferor in such transfer, signed by a person purporting to
be its duly authorized officer, reasonably satisfactory to the Company, the
Trustee and the Bond Registrar, in either case, to the effect that such transfer
is either (A) covered by an effective registration statement of the Company
under the Securities Act (setting forth the registration number and the date of
effectiveness of such registration statement), or (B) exempt from registration
under the Securities Act (setting forth the applicable exemption from
registration being relied upon and the reason such exemption is applicable to
such transfer).
Any transfer of New Mortgage Bonds of the Credit Agreement (2002) Series
(i) shall be subject to the provisions of Section 3.05 of the Indenture, except
that the provisions of paragraph (g) of such Section 3.05 shall not be
applicable to any transfer of New Mortgage Bonds of the Credit Agreement (2002)
Series which occurs on or prior to the Remedy Exercise Day, and (ii) shall be
made at the office or agency of the Company in the Borough of Manhattan, The
City of New York.
The Company has waived any right to make any charge for any exchange or
transfer of New Mortgage Bonds of the Credit Agreement (2002) Series by the
Collateral Agent or any Person that is a direct transferee of the Collateral
Agent (but not by any other transferee of New Mortgage Bonds of the Credit
Agreement (2002) Series), whether to reimburse itself for any tax or taxes or
other governmental charge or otherwise (it being understood that the Company
shall pay any tax or taxes or governmental or other charge which may be payable
by reason of any exchange or transfer of New Mortgage Bonds of the Credit
Agreement (2002) Series by the Collateral Agent or any Person that is a direct
transferee of the Collateral Agent). However, the Company reserves the right to
require payment of a sum sufficient to cover any tax or taxes or governmental or
other charge that may be imposed in connection with any transfer or exchange of
New Mortgage Bonds of the Credit Agreement (2002) Series by any registered owner
other than the Collateral Agent or any Person that is a direct transferee of the
Collateral Agent, other than any exchange pursuant to Section 3.04, 5.06 or
14.06 of the Indenture not involving any transfer.
13
General
- -------
To the extent permitted by, and as provided in, the Indenture,
modifications or alterations of the Indenture, or of any indenture supplemental
thereto, 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 Credit Agreement (2002)
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
CREDIT AGREEMENT (2002) SERIES
SECTION 1. The Company hereby exercises the right to obtain the
authentication of $62,500,000 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
Credit Agreement (2002) Series.
SECTION 2. The Company hereby exercises the right to obtain the
authentication of $47,500,000 principal amount of Bonds pursuant to the terms of
Section 4.04 of the Indenture. All such Bonds shall be New Mortgage Bonds of the
Credit Agreement (2002) Series.
SECTION 3. Such New Mortgage Bonds of the Credit Agreement (2002) Series
may be authenticated and delivered prior to the filing for recordation of this
Supplemental Indenture.
ARTICLE III
REDEMPTION AND OTHER PROVISIONS
SECTION 1. New Mortgage Bonds of the Credit Agreement (2002) Series
shall be subject to the following redemption and other terms and conditions:
(I) New Mortgage Bonds of the Credit Agreement (2002) Series shall be
subject to redemption as follows (but shall not otherwise be or become subject
to
14
redemption, whether at the option of the holders thereof or the Company or
pursuant to any other requirements or provisions of the Indenture): (A) on each
day on which the Loans are subject to prepayment in accordance with the Credit
Agreement, New Mortgage Bonds of the Credit Agreement (2002) Series shall be
subject to redemption in an aggregate principal amount equal to the Applicable
Share of the aggregate principal amount of the Loans that are so subject to
prepayment on such day; and (B) on the Acceleration Day, the entire aggregate
principal amount of the New Mortgage Bonds of the Credit Agreement (2002) Series
shall be subject to redemption (the "Acceleration Redemption"); in each case,
without any necessity for notice or call by the Trustee (such notice and call
being waived by the registered owners of the New Mortgage Bonds of the Credit
Agreement (2002) Series by the acceptance of the New Mortgage Bonds of the
Credit Agreement (2002) Series and in connection with each Redemption Demand
hereinafter described). Redemption of New Mortgage Bonds of the Credit Agreement
(2002) Series shall be at a redemption price equal to the principal amount of
such New Mortgage Bonds of the Credit Agreement (2002) Series (without premium),
together with interest accrued on said principal to and including the date of
redemption (collectively, a "Redemption Amount"). In the event of any failure by
the Company to pay when due the Redemption Amount with respect to any redemption
of New Mortgage Bonds of the Credit Agreement (2002) Series, interest shall
accrue on such unpaid Redemption Amount at the rate or rates (and in amounts
equal to the Applicable Share of the amounts) of interest that accrue on the
corresponding unpaid principal of and interest on the Loans in accordance with
the Credit Agreement.
The Trustee may conclusively presume that no redemption of New Mortgage
Bonds of the Credit Agreement (2002) Series is required pursuant to this
subdivision (I) unless and until it shall have received a written notice from
the Administrative Agent, signed by a person purporting to be its duly
authorized officer, stating that the Loans are subject to prepayment or have
been accelerated, in either case, in accordance with the Credit Agreement (a
"Redemption Demand"). Each Redemption Demand also shall state the date on which
the Loans are subject to prepayment or acceleration in accordance with the
Credit Agreement, the principal amount of the Loans subject to such prepayment
or acceleration on such date, the principal amount of the New Mortgage Bonds of
the Credit Agreement (2002) Series to be redeemed on such date in accordance
with this Supplemental Indenture by reason of such prepayment or acceleration,
and the Redemption Amount payable with respect to such New Mortgage Bonds of the
Credit Agreement (2002) Series (determined in accordance with this Supplemental
Indenture and setting forth the amounts of the respective portions thereof
representing principal of and interest on such Bonds). Each Redemption Demand
shall be accompanied by a written waiver by the Collateral Agent, as registered
owner of all of the New Mortgage Bonds of the Credit Agreement (2002) Series
then Outstanding, of notice of redemption and call for redemption by the Trustee
of the New Mortgage Bonds of the Credit Agreement (2002) Series subject to
redemption as described in such Redemption Demand. The Trustee may conclusively
presume the statements contained in each Redemption Demand to be correct.
(II) For the avoidance of any doubt (in the case of the following
clauses (i) and (ii)) and notwithstanding anything herein or in any of the New
Mortgage Bonds of the
15
Credit Agreement (2002) Series to the contrary other than the provisions of
subdivision (IV) below (in the case of the following clause (iii)): (i) prior to
the Remedy Exercise Day (as hereinafter defined), each payment of principal of
or interest on the New Mortgage Bonds of the Credit Agreement (2002) Series that
becomes due and payable on any day in accordance with this Supplemental
Indenture (whether by reason of stated due date, acceleration, redemption or
otherwise) shall correspond to, and be equal to the Applicable Share of, a
payment of principal of or interest on the Loans that becomes due and payable on
such day in accordance with the Credit Agreement; (ii) on the Acceleration Day,
the Redemption Amount with respect to the Acceleration Redemption shall be due
and payable; and (iii) on and after the Remedy Exercise Day (as hereinafter
defined), (a) the Redemption Amount with respect to the Acceleration Redemption
shall bear interest (to the extent permitted by law in the case of interest on
the portion of the Redemption Amount representing interest on the applicable
Bonds) at a variable rate per annum which rate for each day shall be equal to
the Prime-Based Rate (as hereinafter defined and as calculated by the Trustee)
for such day plus 6.75%, payable to the registered owners of the New Mortgage
Bonds of the Credit Agreement (2002) Series in the manner provided in Section
3.07(b) of the Original Indenture (as supplemented) or Section 10.07 of the
Original Indenture (as supplemented), whichever is applicable, and (b) payments
of principal of and interest on the New Mortgage Bonds of the Credit Agreement
(2002) Series shall cease to correspond to payments of principal of and interest
on the Loans (and shall not be satisfied and discharged by the satisfaction and
discharge of the Loans).
As used herein, "Remedy Exercise Day" means the day (on or after the
Acceleration Day) on which all (but not less than all) of the New Mortgage Bonds
of the Credit Agreement (2002) Series and all (but not less than all) of the
Montana Credit Agreement Bonds are transferred by the Collateral Agent to or
upon the order of the Lenders in full satisfaction and discharge of the Loans
and the Obligations (as defined in the Collateral Agreement) pursuant to Section
4.1 of the Collateral Agreement (as such transfer is evidenced by the
registration in the names of the transferees in such transfer of certificates
evidencing all (but not less than all) of the New Mortgage Bonds of the Credit
Agreement (2002) Series and all (but not less than all) of the Montana Credit
Agreement Bonds). The Trustee may conclusively presume that the Remedy Exercise
Day has not occurred unless and until it shall have received a written notice
from the Collateral Agent, signed by a person purporting to be its duly
authorized officer, stating that the Remedy Exercise Day has occurred (the
"Remedy Exercise Day Notice"). The Remedy Exercise Day Notice (i) shall set
forth (i) the date of the Remedy Exercise Day, (ii) in the case of any such
transfer with respect to which the Trustee is not the transfer agent, have
attached thereto, as evidence of the transfer of the New Mortgage Bonds of the
Credit Agreement (2002) Series and the Montana Credit Agreement Bonds that gave
rise to the occurrence of the Remedy Exercise Day, copies of certificates
registered in the names of the transferees in such transfer of all (but not less
than all) of the New Mortgage Bonds of the Credit Agreement (2002) Series and
all (but not less than all) of the Montana Credit Agreement Bonds, and (iii) if
the Remedy Exercise Day Notice is received by the Trustee on a day other than
the Remedy Exercise Day, the Prime Rate (as hereinafter defined) for each day on
and after the Remedy Exercise Day and on and prior to the Business Day on
16
which the Trustee received the Remedy Exercise Day Notice. The Trustee may
conclusively presume the statements in the Remedy Exercise Day Notice to be
correct.
As used herein, "Prime-Based Rate" means, with respect to a particular
day (on or after the Remedy Exercise Day), the higher rate per annum of: (i) the
"Prime Rate" (as hereinafter defined) for such day; and (ii) 4.0%. As used
herein, "Prime Rate" means, with respect to a particular day, the "Prime-1 Rate"
for such day as such rate shall appear on the Business Day next succeeding such
day on the display on Moneyline Telerate, Inc. or any successor service on page
128 or any page that may replace page 128 on such service; provided that (a) if
such day is not a Business Day, the Prime Rate for such day shall be such rate
for the next preceding Business Day as so appearing on the next succeeding
Business Day, and (b) if no such rate so appears on such next succeeding
Business Day, the Prime Rate for such day shall be the "prime rate" for such day
(or, if such day is not a Business Day, for the next preceding Business Day) as
such rate appears on the next succeeding Business Day in the Wall Street Journal
under the caption "Money Rates" (or if the Wall Street Journal ceases to be
published or of general circulation, such other financial journal or newspaper
of general circulation as is selected by the Trustee); provided further that if
no rate so appears on such next succeeding Business Day in the Wall Street
Journal or such other financial journal or newspaper of general circulation, the
Prime Rate for such day shall be the Prime Rate in effect with respect to the
day on which the Prime Rate was last determinable in accordance with the
foregoing provisions of this definition; and provided further that the Prime
Rate for each day on and after the Remedy Exercise Day and on and prior to the
Business Day on which the Trustee received the Remedy Exercise Day Notice shall
be (i) the rate stated in the Remedy Exercise Day Notice as the Prime Rate for
such day, or (ii) if no such rate for such day is stated in the Remedy Exercise
Day Notice, the Prime Rate for the Business Day next succeeding the Business Day
on which the Trustee received the Remedy Exercise Day Notice (as determined in
accordance with the foregoing provisions of this definition).
(III) Prior to the Remedy Exercise Day, the obligation of the Company to
make each payment of principal of or interest on the New Mortgage Bonds of the
Credit Agreement (2002) Series that becomes due and payable in accordance with
this Supplemental Indenture (i) shall be fully satisfied and discharged if the
corresponding payment of the principal of or interest on the Loans shall have
been fully paid under and in accordance with the Credit Agreement, and (ii)
shall be partially satisfied and discharged if the corresponding payment of the
principal of or interest on the Loans shall have been partially paid under and
in accordance with the Credit Agreement (such partial satisfaction and discharge
with respect to the New Mortgage Bonds of the Credit Agreement (2002) Series to
be in an amount equal to the Applicable Share of the amount of such partial
payment with respect to the Loans). Prior to the Remedy Exercise Day, the
Trustee may conclusively presume that the obligation of the Company to make
payments with respect to the principal of and interest on New Mortgage Bonds of
the Credit Agreement (2002) Series shall have been fully satisfied and
discharged unless and until the Trustee shall have received a written notice
from the Administrative Agent, signed by a person purporting to be its duly
authorized officer, stating (i) that the Company has failed to make timely
payment in full or in part of an amount of principal
17
of and/or interest on the Loans which became due and payable in accordance with
the Credit Agreement, (ii) the amount and date of such payment of principal of
and/or interest on the Loans which the Company has failed to make in accordance
with the Credit Agreement, and (iii) the amount of principal of and/or interest
on the New Mortgage Bonds of the Credit Agreement (2002) Series which, in
accordance with this Supplemental Indenture, has not been satisfied and
discharged by reason of such failure of the Company. The Trustee may
conclusively presume the statements contained in any such notice from the
Administrative Agent to be correct (unless and until the Trustee shall receive a
subsequent and/or modified notice from the Administrative Agent pursuant to and
in accordance with this subdivision III). Without limitation of the foregoing,
and for the avoidance of any doubt, it is expressly stated that, prior to the
Remedy Exercise Day, the Trustee shall not be responsible for (i) the
calculation of interest on the New Mortgage Bonds of the Credit Agreement (2002)
Series, or (ii) the determination of any amount (including, without limitation,
any principal of or interest on the Loans) that is payable or paid under the
Credit Agreement.
(IV) Nothing herein or in any of the New Mortgage Bonds of the Credit
Agreement (2002) Series (including, without limitation, any reference to the
principal payable with respect to the New Mortgage Bonds of the Credit Agreement
(2002) Series being determined on the basis of the Applicable Share of the
principal payable with respect to the Loans) shall, or shall be deemed or
construed to, (i) increase the aggregate principal amount of the New Mortgage
Bonds of the Credit Agreement (2002) Series that are Outstanding from time to
time, (ii) cause or permit an amount of principal of the New Mortgage Bonds of
the Credit Agreement (2002) Series to be or to become due and payable which,
when added to all other principal of such Bonds theretofore paid, exceeds
$110,000,000, or (iii) cause or permit to be or to become due and payable
interest on the New Mortgage Bonds of the Credit Agreement (2002) Series which
is payable on any principal of the New Mortgage Bonds of the Credit Agreement
(2002) Series that is in excess of the principal of the New Mortgage Bonds of
the Credit Agreement (2002) Series as restricted pursuant to the preceding
clauses (i) and (ii).
(V) The provisions of Sections 1.l6 and 3.07(b) of the Original
Indenture shall not be applicable with respect to New Mortgage Bonds of the
Credit Agreement Series (2002) prior to the Remedy Exercise Day (the provisions
of such Bonds establishing the dates for payment of principal and interest on
such Bonds prior to the Remedy Exercise Day being in lieu of the provisions of
Section 1.16 of the Original Indenture).
ARTICLE IV
ADDITIONAL COVENANT FOR THE BENEFIT OF THE
NEW MORTGAGE BONDS OF THE CREDIT AGREEMENT (2002) SERIES
SECTION 1. The Company covenants that so long as any of the New Mortgage
Bonds of the Credit Agreement (2002) Series shall remain Outstanding, (i) the
Company shall not submit a request to the Trustee or otherwise apply to the
Trustee for (a) the authentication and delivery of Bonds pursuant to Article
Four of the Original Indenture (as supplemented), (b) the application of
insurance proceeds pursuant to Section 6.07 of the Original Indenture (as
supplemented), (c) the release of property (including the
18
withdrawal of proceeds of insurance or other cash) pursuant to Article Eight of
the Original Indenture (as supplemented), or (d) the execution and delivery of
an indenture supplemental to the Indenture (any such request or application
being referred to as an "Application"), in any such case, unless the Company
shall have given to the Administrative Agent, at least the Required Number of
Days (as hereinafter defined) prior to the submission to the Trustee of such
Application, notice of its intention to apply to the Trustee for the taking of
such action (an "Administrative Agent Notice"), and (ii) the Company shall have
furnished to the Trustee, in addition to the other materials required by the
provisions of the Original Indenture (as supplemented) to be furnished to the
Trustee as part of such Application, a copy of the Administrative Agent Notice
with respect to such Application and an Officer's Certificate to the effect that
at least the Required Number of Days has elapsed subsequent to the giving by the
Company to the Administrative Agent of the Administrative Agent Notice with
respect to such Application and prior to the submission to the Trustee of such
Application (an "Administrative Agent Notice Certificate"). Receipt by the
Trustee of a copy of the Administrative Agent Notice and the Administrative
Agent Notice Certificate with respect to an Application shall be conditions to
any action applied for in such Application. As used herein, "Required Number of
Days" means, with respect to an Application, three (3) Business Days (as defined
in Article I, Section 1 of this Supplemental Indenture) or such shorter period
of time to which the Administrative Agent shall have agreed in writing. For the
avoidance of doubt, it is expressly stated that (i) an Administrative Agent
Notice may cover one or more different Applications and/or one or more different
actions to be taken pursuant to the same or different provisions of the Original
Indenture (as supplemented), and (ii) notwithstanding the number of Applications
or actions covered by an Administrative Agent Notice, such Administrative Agent
Notice need be given by the Company to the Administrative Agent only once (at
least the Required Number of Days prior to the submission to the Trustee of the
first Application covered by such Administrative Agent Notice).
ARTICLE V
AMENDMENTS TO MORTGAGE
SECTION 1. Section 1.03 of the Original Indenture is amended by adding
at the end thereof the following additional paragraph:
Notwithstanding anything herein to the contrary, (i) with respect
to the Net Earnings Certificate required as a condition to the issuance
of New Mortgage Bonds of the Credit Agreement (2002) Series pursuant to
Section 4.03 and, if applicable, Section 4.04 of the Original Indenture,
and (ii) with respect to each Net Earnings Certificate required at any
time at which (a) any of the New Mortgage Bonds of the Credit Agreement
(2002) Series are Outstanding under the Indenture, and (b) any bonds are
outstanding under the Montana Mortgage, the "Adjusted Net Earnings of
the Company" shall be, and shall be stated in such Net Earnings
Certificate to be, the lesser of (A) the amount (for the applicable
period selected in accordance with paragraph (a) of this Section 1.03)
determined in accordance with paragraph (a) of this Section 1.03 (and
the other provisions of this Section 1.03 that are relevant to such
paragraph) on the basis of (i) the items
19
set forth in clauses (i) and (ii) of paragraph (a) of this Section 1.03
being such portions of such items of the Company as have been reasonably
allocated by the Company to or from the Mortgaged Property as a plant or
plants and an operating system or operating systems in a manner
consistent with the manner of allocation utilized and/or to be utilized
by the Company in making calculations of the "Adjusted Net Earnings of
the Company" under and as defined in the Montana Mortgage, and (ii) the
item set forth in clause (iv) of paragraph (a) of this Section 1.03
being calculated without regard to income derived by the Company from
any electric and/or gas utility business of the Company in which the
Mortgaged Property is not utilized (but otherwise in accordance this
Section 1.03), and (B) the amount (for the applicable period selected in
accordance with paragraph (a) of this Section 1.03) determined in
accordance with paragraph (a) of this Section 1.03 (and the other
provisions of this Section 1.03 that are relevant to such paragraph)
(without any allocation or distinction as to the derivation of the items
set forth in any of the clauses of paragraph (a) of this Section 1.03,
other than allocation or distinction between (i) the electric and/or gas
utility business or businesses in which the Company is engaged (whether
or not the Mortgaged Property is utilized in connection therewith), and
(ii) the other business or businesses (if any) in which the Company is
engaged (with such other business or businesses being given effect under
the item set forth in clause (iv) of paragraph (a) of this Section
1.03). Each such Net Earnings Certificate shall contain a statement of
the signers of such Net Earnings Certificate that, in the opinion of
such signers, the allocations made in the calculations of "Adjusted Net
Earnings of the Company" as set forth in such Net Earnings Certificate
are in accordance with the requirements of this final paragraph of this
Section 1.03.
ARTICLE VI
THE TRUSTEE
The Trustee hereby accepts the trust hereby declared and 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.
20
ARTICLE VII
MISCELLANEOUS PROVISIONS
Except as otherwise defined herein, all capitalized terms used in this
Supplemental Indenture have the meanings stated in the Original Indenture, as
heretofore supplemented.
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.
[Signature Pages Follow]
21
IN WITNESS WHEREOF, NorthWestern Corporation has caused this
Supplemental 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 Supplemental Indenture to be attested by an Authorized
Executive Officer as defined in the Indenture; and JPMorgan Chase Bank, in
evidence of its acceptance of the trust hereby created, has caused this
Supplemental 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 Supplemental Indenture to be attested by its Secretary or one of its
Vice Presidents; all as of the 1st day of February, 2003.
NORTHWESTERN CORPORATION
By /s/ Eric R. Jacobsen
------------------------------------
Eric R. Jacobsen
(CORPORATE SEAL)
ATTEST:
/s/ Alan D. Dietrich
- ------------------------------------
Alan D. Dietrich
JPMORGAN CHASE BANK
By /s/ L. O'Brien
--------------------------------------------
Vice President
(CORPORATE SEAL)
ATTEST:
/s/ William G. Keenan
- ------------------------------------
Vice President
STATE OF SOUTH DAKOTA )
) SS
COUNTY OF MINNEHAHA )
BE IT REMEMBERED, that on this 10th day of February, 2003, before me,
Karen L. Smook, a Notary Public within and for the County and State aforesaid,
personally came Eric R. Jacobsen, Senior Vice President, General Counsel, Chief
Legal Officer and Assistant Corporate Secretary and an Authorized Executive
Officer (as such term is defined in the Indenture referred to in the foregoing
Supplemental Indenture) and Alan D. Dietrich, the Corporate Secretary and an
Authorized Executive Officer (as such term is defined in the Indenture referred
to in the foregoing Supplemental Indenture) of NorthWestern Corporation, 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 officers and as the free and voluntary act of NorthWestern
Corporation 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.
/s/ Karen L. Smook
------------------------------------
Karen L. Smook
Notary Public, Minnehaha County, S.D.
{NOTARIAL SEAL) My Commission expires 7-12-2005
STATE OF NEW YORK )
) SS
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on this 10th day of February, 2003, before me,
Emily Fayan, a Notary Public within and for the County and State aforesaid,
personally came L. O'Brien, a Vice President, and William G. Keenan, a Vice
President, of JPMorgan Chase Bank, a bank organized under the laws of the State
of New York, 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, each as such Vice President and as the free and voluntary act of JPMorgan
Chase Bank 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.
/s/ Emily Fayan
Emily Fayan
Notary Public, State of New York
No. 01FA4737006
Qualified in Kings County
Certificate Filed in New York County
(NOTARIAL SEAL) Commission expires Dec. 31, 2005