Exhibit 4.1
NORTHWESTERN
CORPORATION
TO
U.S.
BANK NATIONAL ASSOCIATION
Trustee
Indenture
Dated
as of November 1, 2004
NORTHWESTERN
CORPORATION
Reconciliation and Tie between
Trust Indenture Act of 1939 and Indenture, dated as of November 1, 2004
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Trust Indenture Act Section
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Indenture Section(s)
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§310(a)(1)
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809
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(a)(2)
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809
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(b)
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808, 810
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§311(a)
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813
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(b)
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813
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(c)
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813
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§312(a)
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901
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(b)
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901
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(c)
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901
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§313(a)
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902
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(b)
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902
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(c)
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902
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(d)
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902
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§314(a)
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902, 505
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(b)
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321
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(c)(1)
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102
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(c)(2)
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102
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(c)(3)
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Not Applicable
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(d)
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312, 315, 318
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(e)
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102
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§315(a)
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801, 803
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(b)
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802
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(c)
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801
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(d)
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801
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(e)
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714
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§316(a)
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712, 713
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(a)(1)(A)
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702, 712
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(a)(1)(B)
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713
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(a)(2)
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Not Applicable
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(b)
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708
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(c)
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104
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§317(a)(1)
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703
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(a)(2)
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705
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(b)
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503
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§318(a)
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107
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INDENTURE
, dated as of November
1, 2004, between
NORTHWESTERN CORPORATION
, a
corporation organized and existing under the laws of the State of Delaware
(hereinafter sometimes called the “Company”), and U.S. Bank National
Association, a national banking association, as trustee (hereinafter sometimes
called the “Trustee”).
Recitals of the Company
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
debentures, notes or other evidences of indebtedness (herein called the “Securities”),
to be issued in one or more series as contemplated herein; all acts necessary
to make this Indenture a valid agreement of the Company have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
that, in consideration of the premises and of the purchase of the Securities by
the Holders thereof, it is hereby covenanted and agreed by and between the
Company and the Trustee that all the Securities are to be authenticated and
delivered subject to the further covenants, conditions and trusts hereinafter
set forth, and the Company hereby covenants and agrees to and with the Trustee,
for the equal and ratable benefit of all Holders of the Securities or of series
thereof (except as otherwise contemplated herein), as follows:
ARTICLE ONE
Definitions and Other Provisions of General
Application
SECTION
101
. General Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a)
the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b)
all terms used herein without definition which are defined
in the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c)
all terms used herein without definition which are defined
in the Uniform Commercial Code as in effect in any jurisdiction in which any
property of the Company is located shall have the meanings assigned to them
therein with respect to such property;
(d)
all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States; and, except as otherwise herein expressly
provided, the term “generally accepted accounting principles” with respect to
any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the date of such
computation or, at the election of the Company from time to time, at the date
of the execution and delivery of this Indenture; provided, however, that in determining
generally
accepted
accounting principles applicable to the Company, effect shall be given, to the
extent required, to any order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having jurisdiction over the
Company; and
(e)
the words “herein”, “hereof” and “hereunder” and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
“Act”
, when used with
respect to any Holder of a Security, has the meaning specified in Section 104.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person. For purposes of this definition,
“control,”
as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise;
provided
that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms
“controlling,”
and
“controlled by”
and “
under common control with
” have
correlative meanings.
“
Applicable
Basis
”
has the meaning assigned to that term in Section
314.
“Appraiser”
means a Person engaged in the business of appraising property or otherwise
qualified to pass upon the fair value or fair market value of property, who,
unless required to be Independent, may be an employee of the Company.
“Authenticating
Agent”
means any Person (other than the Company or an Affiliate
of the Company) authorized by the Trustee to act on behalf of the Trustee to
authenticate the Securities of one or more series.
“Authorized
Officer”
means the Chairman of the Board, the President,
any Vice President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Corporate Secretary or any Assistant Corporate Secretary or any other duly
authorized officer, agent or attorney-in-fact of the Company named in an
Officer’s Certificate signed by any of such corporate officers or authorized
pursuant to a Board Resolution.
“Board of
Directors”
means:
(1) with respect to a corporation, the
board of directors of the corporation or any committee of such board of
directors duly authorized to act for the corporation;
(2) with respect to a partnership, the
Board of Directors of the general partner of the partnership;
(3) with respect to a limited liability
company, the managing member or members or any controlling committee of managing
members thereof; and
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(4) with respect to any other Person, the
board or committee of such Person serving a similar function.
“Board
Resolution”
means a copy of a resolution certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee; and when used
with respect to this definition of “
Board Resolution,
”
“
Board of Directors
” means either the
board of directors of the Company or any committee thereof duly authorized to
act in respect of matters relating to this Indenture.
“Business
Day”
,
when used with respect to a Place of Payment or any
other particular location specified in the Securities or this Indenture, means
any day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to
remain closed, except as may be otherwise specified as contemplated by Section
301.
“Capital Stock”
means:
(1) in the case of a corporation,
corporate stock;
(2) in the case of an association or
business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3) in the case of a partnership or
limited liability company, partnership or membership interests (whether general
or limited); and
(4) any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.
“Cash
Equivalents”
has the meaning specified in Section 114.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, as amended, or, if at any
time after the date of the execution and delivery of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body, if any, performing such duties at such time.
“Company”
means the Person named as the “Company” in the first paragraph of this
Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean
such successor Person.
“Company
Order”
or
“Company Request”
means a written request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
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“Corporate
Trust Office”
means the office of the Trustee at which at
any particular time its corporate trust business shall be principally administered,
which office at the date of the execution and delivery of this Indenture is
located at 100 Wall Street, New York, New York
10005.
“corporation”
means a corporation or, except for purposes of Section 1001(a), an association,
company, joint stock company or business trust.
“Customary
Exceptions”
means, with respect to any Opinion of Counsel
required to be delivered hereunder, such exceptions to opinions as are
customarily expressed in opinions of counsel rendered in connection with
similar transactions at the time such Opinion of Counsel is to be delivered
and, in any event, shall include exceptions based upon limitations imposed by
(a) bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors’ rights, and (b) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
“Defaulted
Interest”
has the meaning specified in Section 307.
“Discount
Security”
means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 702.
“Dollar”
or
“$”
means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
“Eligible
Obligations”
means:
(a) with respect to Securities
denominated in Dollars, Government Obligations; or
(b) with respect to Securities
denominated in a currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with respect to such
Securities as contemplated by Section 301.
“
Engineer
”
means a Person engaged in the engineering profession or otherwise qualified to
pass upon engineering matters (including, but not limited to, a Person licensed
as a professional engineer, whether or not then engaged in the engineering
profession), who, unless required to be Independent, may be an employee of the
Company.
“Event of
Default”
has the meaning specified in Section 701.
“Exchange
Act”
means the Securities Act of 1934 and the rules and
regulations promulgated thereunder, as amended from time to time.
“Expert”
means a Person which is an Engineer, Appraiser or other expert and which, with
respect to any certificate to be signed by such Person and delivered to the
Trustee, is
4
qualified to pass upon the matter set forth in such
certificate, who, unless required to be Independent, may be an employee of the
Company.
“Expert’s
Certificate”
means a certificate signed by an Expert
(which if required to be “Independent” shall be selected either by the Board of
Directors or by an Authorized Officer of the Company, such selection to be
conclusively evidenced by a Board Resolution or an Officer’s Certificate) and
delivered to the Trustee. An Expert’s
Certificate of an Expert who is Independent is sometimes referred to herein as
an “Independent Expert’s Certificate”.
“First
Mortgage Bonds”
means bonds or other obligations now or
hereafter issued and Outstanding under either Mortgage.
“Governmental
Authority”
means the government of the United States or
of any State or Territory thereof or of the District of Columbia or of any county,
municipality or other political subdivision of any thereof, or any department,
agency, authority or other instrumentality of any of the foregoing.
“Government
Obligations”
means:
(a) direct obligations of, or obligations
the principal of and interest on which are unconditionally guaranteed by, the
United States which are entitled to the benefit of the full faith and credit
thereof; and
(b) certificates, depositary receipts or
other instruments which evidence a direct ownership interest in obligations
described in clause (a) above or in any specific interest or principal payments
due in respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a bank or trust
company (which may include the Trustee or any Paying Agent) subject to Federal
or State supervision or examination with a combined capital and surplus of at
least One Hundred Million Dollars ($100,000,000); and provided, further, that
except as may be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts or other
instruments the full amount received by such custodian in respect of such
obligations or specific payments and shall not be permitted to make any deduction
therefrom.
“Holder”
means a Person in whose name a Security is registered in the Security Register.
“Indenture”
means this instrument as originally executed and delivered and as it may from
time to time be amended and/or supplemented by one or more indentures or other
instruments supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 301.
“Independent”
,
when applied to any Expert, means such a Person who (a) is in fact independent,
(b) does not have any material financial interest in any obligor upon the
Securities or in any Affiliate of any such obligor, (c) is not connected with
any such obligor as an
5
officer, employee, promoter, underwriter, trustee,
partner, director or any person performing similar functions and (d) is
approved by the Trustee in the exercise of reasonable care.
“interest”
with respect to a Discount Security means interest, if any, borne by such
Security at a Stated Interest Rate, rather than interest calculated at any
imputed rate.
“Interest
Payment Date”
, when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
“Lien”
means any mortgage, deed of trust, pledge, security interest, encumbrance,
easement, lease, reservation, restriction, servitude, charge or similar right
and any other lien of any kind, whether or not filed, recorded or otherwise
perfected under applicable law, including, without limitation, any conditional
sale or other title retention agreement, any lease in the nature thereof and
any option or other agreement to sell or give a security interest in and any
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction.
“Maturity”
,
when used with respect to any Security, means the date on which the principal
of such Security or an installment of principal becomes due and payable as
provided in such Security or in this Indenture, whether at the Stated Maturity,
by declaration of acceleration, upon call for redemption or otherwise.
“Montana
Mortgage”
means the Mortgage and Deed of Trust, dated as
of October 1, 1945, of the Company (successor thereunder to NorthWestern
Energy, L.L.C., in turn successor thereunder to The Montana Power Company) to
The Bank of New York (successor thereunder to Guaranty Trust Company of New
York) and Mary Beth Lewicki (successor thereunder to Arthur E. Burke), as
trustees (collectively with each other and with their respective successors in
such capacity, the “
Montana Mortgage Trustee
”),
as such indenture has been heretofore and is hereafter amended and
supplemented.
“Mortgage”
means the Montana Mortgage or the South Dakota Mortgage.
“Mortgage
Trustee”
means, with respect to the Montana Mortgage,
the Montana Mortgage Trustee, and with respect to the South Dakota Mortgage, the
South Dakota Mortgage Trustee.
“Notice
of Default”
has the meaning specified in Section 701.
“Officer’s
Certificate”
means a certificate signed by an Authorized
Officer and delivered to the Trustee.
“Opinion
of Counsel”
means a written opinion of counsel, who may
be counsel for the Company or other counsel reasonably acceptable to the
Trustee, and who may be an employee or Affiliate of the Company.
“Outstanding”
,
when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
6
(a) Securities theretofore canceled or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for
whose payment or redemption or repayment at the option of the Holder money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) Securities, except to the extent
provided in Sections 602 and 603, with respect to which the Company has
effected legal defeasance and/or covenant defeasance as provided in Article
Six; and
(d) Securities which have been paid
pursuant to Section 306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it and the Company that such Securities are held
by a bona fide purchaser or purchasers in whose hands such Securities are valid
obligations of the Company;
provided, however, that
in determining whether or not the Holders of the requisite principal amount of
the Securities Outstanding under this Indenture, or the Outstanding Securities
of any series or Tranche, have given or made any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities
owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor (unless the
Company, such obligor or such Affiliate owns all Securities Outstanding under
this Indenture, or all Outstanding Securities of each such series and each such
Tranche, as the case may be, determined without regard to this clause (x))
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver or upon
any such determination as to the presence of a quorum, only Securities which
the Trustee knows to be so owned shall be so disregarded; provided, however,
that Securities so owned which have been pledged in good faith may be regarded
as Outstanding if it is established to the reasonable satisfaction of the
Trustee that the pledgee, and not the Company, any such other obligor or
Affiliate of either thereof, has the right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor; and
7
(y) the principal amount of a Discount
Security that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 702; and
provided, further, that,
in the case of any Security the principal of which is payable from time to time
without presentment or surrender, the principal amount of such Security that
shall be deemed to be Outstanding at any time for all purposes of this Indenture
shall be the original principal amount thereof less the aggregate amount of
principal thereof theretofore paid.
“Outstanding”
, when used with
respect to First Mortgage Bonds, has the meaning specified in the related
Mortgage.
“Paying Agent”
means any Person, including the Company, authorized by the
Company to pay the principal of and premium, if any, or interest, if any, on
any Securities on behalf of the Company.
“Periodic
Offering”
means an offering of Securities of a series
from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any, thereon,
the Stated Maturity or Maturities thereof and the redemption provisions, if
any, with respect thereto, are to be determined by the Company or its agents
from time to time subsequent to the initial request for the authentication and
delivery of such Securities by the Trustee, all as contemplated in Section 301
and clause (b) of Section 303.
“Person”
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.
“Place of
Payment”
, when used with respect to the Securities of any
series, or any Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 502, principal of and
premium, if any, and interest, if any, on the Securities of such series or
Tranche are payable.
“Predecessor
Security”
of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to the extent
lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
“Redemption
Date”
, when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
“Redemption
Price”
, when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
“Regular
Record Date”
for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
8
“Required
Currency”
has the meaning specified in Section 311.
“Responsible
Officer”
, when used with respect to the Trustee, means
any officer of the Trustee assigned by the Trustee to administer its corporate
trust matters.
“Restricted
Subsidiary”
when used with respect to the Securities of
any series means the Persons specified as such as contemplated by Section 301
with respect to such series.
“Securities”
means any bonds, notes and other evidences of indebtedness authenticated and
delivered under this Indenture.
“Security Register”
and
“Security Regist
rar”
have the
respective meanings specified in Section 305.
“South
Dakota Mortgage”
means the General Mortgage Indenture and
Deed of Trust, dated as of August 1, 1993, of the Company to JPMorgan Chase
Bank (as successor thereunder to The Chase Manhattan Bank (National
Association)), as trustee (together with its successors in such capacity, the “
South Dakota Mortgage Trustee
”), as such indenture has been
heretofore and is hereafter amended and supplemented.
“Special
Record Date”
for the payment of any Defaulted Interest on
the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
“Stated
Interest Rate”
means a rate (whether fixed or variable)
at which an obligation by its terms is stated to bear simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest Rate on an
obligation shall be made (a) if the Company’s obligations in respect of
any other indebtedness shall be evidenced or secured in whole or in part by such
obligation, by reference to the lower of the Stated Interest Rate on such
obligation and the Stated Interest Rate on such other indebtedness and
(b) without regard to the effective interest cost to the Company of such
obligation or of any such other indebtedness.
“Stated
Maturity”
, when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions for
redemption, prepayment, acceleration, purchase or extension).
“Successor”
has the meaning set forth in Section 1001.
“Tranche”
means a group of Securities which (a) are of the same series and (b) have identical
terms except as to principal amount and/or date of issuance.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
Indenture until a successor trustee shall have become such with respect to one
or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is
then a Trustee hereunder, and, if at any time there is more than one Person
acting as trustee hereunder, “Trustee” shall mean each such Person so acting.
9
“Trust
Indenture Act”
means, the Trust Indenture Act of 1939,
and the rules and regulations promulgated thereunder, as in force at the date
of this Indenture, or if this Indenture is first qualified under said Act after
the first issuance of Securities, as in force at the date of such qualification.
“United
States”
means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
“Voting Stock”
of any Person as
of any date means the Capital Stock of such Person that is at the time entitled
to vote in the election of the Board of Directors of such Person.
SECTION
102
. Compliance Certificates and Opinions.
(a)
Except as otherwise expressly provided in this Indenture,
upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officer’s Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, it
being understood that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
(b)
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(i) a
statement that each individual signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto;
(ii) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;
(iii) a
statement that, in the opinion of each such individual, such individual has
made such examination or investigation as is necessary to enable such
individual to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
SECTION
103
. Content and Form of Documents Delivered to
Trustee.
(a)
Any Officer’s Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
legal matters, upon an opinion of, or representations by, counsel, unless, in
any case, such officer has actual knowledge that the certificate or opinion or
representations with respect to the matters upon which such Officer’s
Certificate may be based as aforesaid are erroneous.
10
Any Opinion of Counsel may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
factual matters, information with respect to which is in the possession of the
Company, upon a certificate of, or representations by, an officer or officers
of the Company, unless such counsel has actual knowledge that the certificate
or opinion or representations with respect to the matters upon which his
opinion may be based as aforesaid are erroneous. In addition, any Opinion of Counsel may be
based (without further examination or investigation), insofar as it relates to
or is dependent upon matters covered in an Opinion of Counsel rendered by other
counsel, upon such other Opinion of Counsel, unless such counsel has actual
knowledge that the Opinion of Counsel rendered by such other counsel with
respect to the matters upon which his Opinion of Counsel may be based as
aforesaid are erroneous. If, in order to
render any Opinion of Counsel provided for herein, the signer thereof shall
deem it necessary that additional facts or matters be stated in any Officer’s
Certificate provided for herein, then such certificate may state all such
additional facts or matters as the signer of such Opinion of Counsel may
request.
(b)
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents. Where any Person is required
to make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
(c)
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer’s Certificate, Opinion of Counsel or other document
or instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if originally
filed in the corrected form and, irrespective of the date or dates of the
actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the
date or dates required with respect to the document or instrument for which it
is substituted. Anything in this
Indenture to the contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the request of the
Company which could not have been taken had the original document or instrument
not contained such error or omission, the action so taken shall not be
invalidated or otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a result of willful
misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be the
valid obligations of the Company entitled to the benefits provided by this
Indenture equally and ratably with all other Outstanding Securities, except as
aforesaid.
11
(a)
Any request, demand, authorization, direction, notice,
consent, election, waiver, vote or other action provided by this Indenture to
be made, given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively, may be embodied in
and evidenced by the record of Holders voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders duly
called and held in accordance with the provisions of Article Twelve, or a
combination of such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
“Act”
of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof
of execution of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 801) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of
Holders shall be proved in the manner provided in Section 1206.
(b)
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem
sufficient. Where such execution is by a
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c)
The ownership of Securities, the principal amount (except
as otherwise contemplated in clause (y) of the first proviso to the definition
of Outstanding) and serial numbers of Securities held by any Person, and the
date of holding the same, shall be proved by the Security Register.
(d)
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e)
Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of principal
amount of Securities for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by written notice by such Holder
or any subsequent Holder, proven in the manner in which such instrument was
proven.
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(f)
Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
action taken by such Act of Holders. If
the Company shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee and the Company,
to such action may be prepared and executed by the Company and authenticated
and delivered by the Trustee in exchange for Outstanding Securities of such
series or Tranche.
(g)
The Company may, at its option, by Company Order, fix in
advance a record date for the determination of Holders entitled to give any
request, demand, authorization, direction, notice, consent, waiver, vote or
other Act solicited by the Company, but the Company shall have no obligation to
do so; provided, however, that the Company may not fix a record date for the
giving or making of any notice, declaration, request or direction referred to
in the next sentence. In addition, the
Trustee may, at its option, fix in advance a record date for the determination
of Holders of Securities of any series entitled to join in the giving or making
of any Notice of Default, any declaration of acceleration referred to in
Section 702, any request to institute proceedings referred to in Section 707 or
any direction referred to in Section 712, in each case with respect to
Securities of such series. If any such
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act, or such notice, declaration, request or
direction, may be given before or after such record date, but only the Holders
of record at the close of business on the record date shall be deemed to be
Holders for the purposes of determining (i) whether Holders of the requisite
proportion of the Outstanding Securities have authorized or agreed or consented
to such Act (and for that purpose the Outstanding Securities shall be computed
as of the record date) and/or (ii) which Holders may revoke any such Act
(notwithstanding subsection (e) of this Section); and any such Act, given as
aforesaid, shall be effective whether or not the Holders which authorized or
agreed or consented to such Act remain Holders after such record date and
whether or not the Securities held by such Holders remain Outstanding after
such record date.
SECTION
105
. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with, the Trustee by any Holder or by the Company, or the Company by the
Trustee or by any Holder, shall be sufficient for every purpose hereunder
(unless otherwise expressly provided herein) if the same shall be in writing
and delivered personally to an officer or other responsible employee of the
addressee, or transmitted by facsimile transmission, telex or other direct
written electronic means to such telephone number or other electronic
communications address set forth opposite such parties name below or as the
parties hereto shall from time to time designate, or transmitted by registered
mail, charges prepaid, to the applicable address set opposite such party’s name
below or to such other address as either party hereto may from time to time
designate:
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If to the Trustee, to:
U.S. Bank National
Association
60 Livingston
Avenue
St. Paul,
Minnesota 55107
Attention: Richard Prokosch
Telephone: 651-495-3918
Facsimile: 651-495-8097
If to the Company, to:
NorthWestern
Corporation
125 S. Dakota
Avenue, Suite 1100
Sioux Falls, South
Dakota 57104
Attention: Corporate Secretary
Telephone: (605) 782-5351
Facsimile: (605) 978-2840
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally delivered, on the date
of delivery, if transmitted by facsimile transmission, telex or other direct
written electronic means, on the date of transmission, and if transmitted by
registered mail, on the date of receipt.
SECTION
106
. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such notice shall
be sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice to Holders by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either before or after
the event otherwise to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
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SECTION
107
. Conflict with Trust Indenture Act.
If any provision of this
Indenture limits, qualifies or conflicts with another
provision hereof which is required or deemed to be included in this Indenture
by, or is otherwise governed by, any provision of the Trust Indenture Act, such
other provision shall control; and if any provision hereof otherwise conflicts
with a provision of the Trust Indenture Act that is required under the Trust
Indenture Act to be a part of and govern this Indenture, the Trust Indenture
Act shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified, or shall be excluded, as the case may
be.
SECTION
108
. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION
109
. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
SECTION
110
. Separability Clause.
In case any provision in this Indenture or the
Securities shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION
111
. Benefits of Indenture.
Nothing in this Indenture or the Securities, express
or implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
This Indenture and the Securities shall be governed by
and construed in accordance with the law of the State of New York (including
without limitation Section 5-1401 of the New York General Obligations Law or
any successor to such statute), except to the extent that the Trust Indenture
Act shall be applicable.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities other than a contrary provision in the
Securities of any series, or any Tranche thereof, or in the indenture
supplemental hereto, Board Resolution or Officer’s Certificate which
establishes the terms of the Securities of
15
such series or Tranche) payment of interest or
principal and premium, if any, need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to such Business Day.
SECTION
114
. Investment of Cash Held by Trustee.
Any cash held by the Trustee or any Paying Agent under
any provision of this Indenture shall, at the request of the Company evidenced
by Company Order, be invested or reinvested in Cash Equivalents designated by
the Company (such Company Order to contain a representation to the effect that
the securities designated therein constitute Cash Equivalents), and any interest
on such Cash Equivalents shall be promptly paid over to the Company as received
free and clear of any Lien. Such Cash
Equivalents shall be held subject to the same provisions hereof as the cash
used to purchase the same, but upon a like request of the Company shall be
sold, in whole or in designated part, and the proceeds of such sale shall be
held subject to the same provisions hereof as the cash used to purchase the
Cash Equivalents so sold. If such sale
shall produce a net sum less than the cost of the Cash Equivalents so sold, the
Company shall pay to the Trustee or any such Paying Agent, as the case may be,
such amount in cash as, together with the net proceeds from such sale, shall
equal the cost of the Cash Equivalents so sold, and if such sale shall produce
a net sum greater than the cost of the Cash Equivalents so sold, the Trustee or
any such Paying Agent, as the case may be, shall promptly pay over to the
Company an amount in cash equal to such excess, free and clear of any Lien. In no event shall the Trustee be liable for
any loss incurred in connection with the sale of any Investment Security
pursuant to this Section.
Notwithstanding the foregoing, if an Event of Default
shall have occurred and be continuing, interest on Cash Equivalents and any
gain upon the sale thereof shall be held, in trust, until such Event of Default
shall have been cured or waived, whereupon such interest and gain shall be
promptly paid over to the Company free and clear of any Lien.
“Cash Equivalents”
means:
(a) United
States dollars; (b) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or instrumentality of the
United States government (
provided
that
the full faith and credit of the United States is pledged in support of those
securities) having maturities of not more than one year from the date of
acquisition; (c) certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers’
acceptances with maturities not exceeding one year and overnight bank deposits,
in each case, with any domestic commercial bank having capital and surplus in
excess of $500.0 million and a Thomson Bank Watch Rating of “B” or better; (d)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (b) and (c) above entered into
with any financial institution meeting the qualifications specified in clause
(3) above; (e) commercial paper having one or the two highest ratings
obtainable from Moody’s Investors Service, Inc. or Standard & Poor’s Rating
Group, Inc.
16
(or any successor to the business of either thereof)
and in each case maturing within one year after the date of acquisition; and
(f) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (a) through (e) of this
definition.
The definitive Securities of each series shall be in
substantially the form or forms established in the Officer’s Certificate, the
indenture supplemental hereto or the Board Resolution establishing such series,
in any case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form or forms of
Securities of any series are established in a Board Resolution or in an Officer’s
Certificate, such Board Resolution and Officer’s Certificate, if any, shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The Securities of each series shall be issuable in
registered form without coupons. The
definitive Securities shall be produced in such manner as shall be determined
by the officers executing such Securities, as evidenced by their execution
thereof.
SECTION
202
. Form of Trustee’s Certificate of
Authentication.
The Trustee’s certificate of authentication shall be
in substantially the form set forth below:
This is one of the
Securities of the series designated therein referred to in the within-mentioned
Indenture.
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as Trustee
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By:
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Authorized
Officer
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SECTION
301
. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
17
The Securities may be issued in one or more
series. Subject to the last paragraph of
this Section, prior to the authentication and delivery of Securities of any
series there shall be established by specification in a supplemental indenture,
an Officer’s Certificate or a Board Resolution:
(a)
the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other series);
(b)
any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 304, 305, 306, 406 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c)
the Persons (without specific identification) to whom
interest, if any, on Securities of such series, or any Tranche thereof, shall
be payable, if other than the Persons in whose names such Securities (or one or
more Predecessor Securities) are registered at the close of business on the
Regular Record Date for such interest;
(d)
the date or dates on which the principal of the Securities
of such series, or any Tranche thereof, is payable or any formulary or other
method or other means by which such date or dates shall be determined, by
reference to an index or other fact or event ascertainable outside of this
Indenture or otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e)
the rate or rates at which the Securities of such series,
or any Tranche thereof, shall bear interest, if any (including the rate or
rates at which overdue principal shall bear interest, if different from the
rate or rates at which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or other method or other means
by which such rate or rates shall be determined, by reference to an index or
other fact or event ascertainable outside of this Indenture or otherwise; the
date or dates from which such interest shall accrue; the Interest Payment Dates
on which such interest shall be payable and the Regular Record Date, if any,
for the interest payable on such Securities on any Interest Payment Date; the
basis of computation of interest, if other than as provided in Section 310;
(f)
the place or places at which and/or the methods (if other
than as provided elsewhere in this Indenture) by which (i) the principal of and
premium, if any, and interest, if any, on Securities of such series, or any
Tranche thereof, shall be payable, (ii) registration of transfer of Securities
of such series, or any Tranche thereof, may be effected, (iii) exchanges of
Securities of such series, or any Tranche thereof, may be effected and (iv)
notices and demands to or upon the Company in respect of the Securities of such
series, or any Tranche thereof, and this Indenture may be served; the Security
Registrar and any Paying Agent or Agents for such series or Tranche; and, if
such is the case, that the principal of such Securities shall be payable
without the presentment or surrender thereof;
18
(g)
the period or periods within which or the date or dates on
which, the price or prices at which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof, may be redeemed, in whole or
in part, at the option of the Company;
(h)
the obligation or obligations, if any, of the Company to
redeem or purchase or repay the Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or other mandatory redemption provisions
or at the option of a Holder thereof and the period or periods within which or
the date or dates on which, the price or prices at which and the terms and
conditions upon which such Securities shall be redeemed or purchased or repaid,
in whole or in part, pursuant to such obligation, and applicable exceptions to
the requirements of Section 404 in the case of mandatory redemption or
redemption or repayment at the option of the Holder;
(i)
the denominations in which Securities of such series, or
any Tranche thereof, shall be issuable if other than denominations of One
Thousand Dollars ($1,000) and any integral multiple thereof;
(j)
the currency or currencies, including composite
currencies, in which payment of the principal of or premium, if any, or
interest, if any, on the Securities of such series, or any Tranche thereof,
shall be payable (if other than in Dollars) and the formulary or other method
or other means by which the equivalent of any such amount in Dollars is to be
determined for any purpose, including for the purpose of determining the
principal amount of such Securities deemed to be Outstanding at any time;
(k)
the series of First Mortgage Bonds (to be issued under either
one or both of the Mortgages) to provide security for the payment of principal
of, premium (if any) and interest (if any) on the Securities of such series (and,
if there are more than one such series of First Mortgage Bonds, the Applicable
Basis with respect thereto); and if applicable with respect to the Securities
of such series, any provisions providing for the termination of the lien of
this Indenture upon the related First Mortgage Bonds in addition to those
provisions contained in Section 315 hereof;
(l)
if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to be
payable, at the election of the Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such election
may be made;
(m)
if the principal of or premium, if any, or interest, if any,
on the Securities of such series, or any Tranche thereof, are to be payable, or
are to be payable at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such securities or other
property, or the formulary or other method or other means by which such amount
shall be determined, and the period or periods within which, and the terms and
conditions upon which, any such election may be made;
(n)
if the amount payable in respect of the principal of or
premium, if any, or interest, if any, on the Securities of such series, or any
Tranche thereof, may be determined
19
with reference to
an index or other fact or event ascertainable outside of this Indenture, the
manner in which such amounts shall be determined (to the extent not established
pursuant to clause (e) of this paragraph);
(o)
if other than the principal amount thereof, the portion of
the principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 702;
(p)
any Events of Default, in addition to those specified in
Section 701, or any exceptions to those specified in Section 701, with respect
to the Securities of any series, any covenants of the company for the benefit
of the Holders of such Securities, in addition to those set forth herein, and
any Restricted Subsidiaries that shall be specified with respect to any such
covenants and the Securities of any series;
(q)
the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for shares
of capital stock or other securities of the Company or any other Person;
(r)
the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities of such
series, or any Tranche thereof, denominated in a currency other than Dollars or
in a composite currency, and any modification or provisions in addition to or in
lieu of the provisions set forth in Article Six in respect of the Securities of
such series;
(s)
if the Securities of such series, or any Tranche thereof,
are to be issued in global form, (i) any limitations on the rights of the
Holder or Holders of such Securities to transfer or exchange the same or to
obtain the registration of transfer thereof, (ii) any limitations on the rights
of the Holder or Holders thereof to obtain certificates therefor in definitive
form in lieu of global or temporary forms and (iii) any other matters
incidental to such Securities;
(t)
if the Securities of such series, or any Tranche thereof,
are to be issuable as bearer securities, any and all matters incidental thereto
which are not specifically addressed in a supplemental indenture as
contemplated by clause (f) of Section 1101;
(u)
to the extent not established pursuant to clause (r) of
this paragraph, any limitations on the rights of the Holders of the Securities
of such Series, or any Tranche thereof, to transfer or exchange such Securities
or to obtain the registration of transfer thereof; and if a service charge will
be made for the registration of transfer or exchange of Securities of such
series, or any Tranche thereof, the amount or terms thereof;
(v)
any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of such series, or
any Tranche thereof; and
(w)
any other terms of the Securities of such series, or any
Tranche thereof.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto, the Officer’s Certificate
or the Board Resolution which establishes such
20
series, as the case may be, may provide general terms
or parameters for Securities of such series and provide either that the
specific terms of Securities of such series, or any Tranche thereof, shall be
specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with procedures specified in a Company
Order as contemplated by clause (b) of Section 303.
If specified with respect to a series of Securities
pursuant to Section 301(b), any limit upon the aggregate principal amount of a
series of Securities may be increased without the consent of any Holders and
additional Securities of such series may be authenticated and delivered up to
the limit upon the aggregate principal amount authorized with respect to such
series as so increased.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche thereof, the
Securities of each series shall be issuable in denominations of One Thousand
Dollars ($1,000) and any integral multiple thereof.
SECTION
303
. Execution, Dating, Certificate of
Authentication.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche thereof, the
Securities shall be executed on behalf of the Company by an Authorized Officer,
and may have the corporate seal of the Company affixed thereto or reproduced
thereon and attested by any other Authorized Officer. The signature of any or all of these officers
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at the time of execution Authorized Officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities
of a series, for original issue, at one time or from time to time in accordance
with the Company Order referred to below, upon receipt by the Trustee of:
(a)
the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and 301;
(b)
a Company Order requesting the authentication and delivery
of such Securities and, to the extent that the terms of such Securities shall
not have been established in an indenture supplemental hereto, an Officer’s
Certificate or a Board Resolution, all as contemplated by Sections 201 and 301,
either (i) establishing such terms or (ii) in the case of Securities of a
series subject to a Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which procedures may
provide for authentication and delivery pursuant to oral or electronic
instructions from the Company or any agent or agents thereof, which oral
instructions are to be promptly confirmed
21
electronically or
in writing), in either case in accordance with the instrument or instruments
delivered pursuant to clause (a) above;
(c)
Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d)
an Opinion of Counsel to the effect that:
(i) the
form or forms of such Securities have been duly authorized by the Company and
have been established in conformity with the provisions of this Indenture;
(ii) the
terms of such Securities have been duly authorized by the Company and have been
established in conformity with the provisions of this Indenture; and
(iii) when
such Securities shall have been authenticated and delivered by the Trustee and
issued and delivered by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, such Securities will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to Customary Exceptions, and entitled to
the benefits provided by this Indenture;
provided, however,
that, with respect to Securities of a series subject to a Periodic Offering,
the Trustee shall be entitled to receive such Opinion of Counsel only once at
or prior to the time of the first authentication and delivery of such
Securities (provided that such Opinion of Counsel addresses the authentication
and delivery of all Securities of such series) and that, in lieu of the
opinions described in clauses (ii) and (iii) above, such Opinion of Counsel may
be to the effect that:
(x) when
the terms of such Securities shall have been established pursuant to a Company
Order or Orders or pursuant to such procedures as may be specified from time to
time by a Company Order or Orders, all as contemplated by and in accordance
with the instrument or instruments delivered pursuant to clause (a) above, such
terms will have been duly authorized by the Company and will have been
established in conformity with the provisions of this Indenture; and
(y) when
such Securities shall have been authenticated and delivered by the Trustee in
accordance with this Indenture and the Company Order or Orders or the specified
procedures referred to in paragraph (x) above and issued and delivered by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, such Securities will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms,
subject to Customary Exceptions, and entitled to the benefits provided by this
Indenture; and
22
(e)
the First Mortgage Bond or First Mortgage Bonds and
documents specified in Section 312.
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the authorization
by the Company of any of such Securities, the forms and terms thereof, the
validity thereof and the compliance of the authentication and delivery thereof
with the terms and conditions of this Indenture, upon the Opinion or Opinions
of Counsel and the certificates and other documents delivered pursuant to this
Article at or prior to the time of the first authentication and delivery of
Securities of such series until any of such opinions, certificates or other
documents have been superseded or revoked or expire by their terms. In connection with the authentication and
delivery of Securities of a series subject to a Periodic Offering, the Trustee
shall be entitled to assume that the Company’s instructions to authenticate and
deliver such Securities do not violate any applicable law or any applicable
rule, regulation or order of any Governmental Authority having jurisdiction
over the Company.
If the form or terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an Officer’s
Certificate as permitted by Sections 201 or 301, the Trustee shall not be
required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche thereof, each
Security shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche thereof, no
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee or an Authenticating Agent by manual signature of an authorized officer
thereof, and such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if (a) any
Security shall have been authenticated and delivered hereunder to the Company,
or any Person acting on its behalf, but shall never have been issued and sold
by the Company, (b) the Company shall deliver such Security to the Security
Registrar for cancellation or shall cancel such Security and deliver evidence
of such cancellation to the Trustee, in each case as provided in Section 309,
and (c) the Company, at its election, shall deliver to the Trustee a written
statement (which need not comply with Section 102 and need not be accompanied
by an Officer’s Certificate or an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, then, for all purposes
of this Indenture, such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the benefits
hereof.
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SECTION
304
. Temporary Securities.
Pending the preparation of definitive Securities of
any series, or any Tranche thereof, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed, photocopied or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities; provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange provisions.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any Tranche
thereof, after the preparation of definitive Securities of such series or
Tranche, the temporary Securities of such series or Tranche shall be
exchangeable, without charge to the Holder thereof, for definitive Securities
of such series or Tranche upon surrender of such temporary Securities at the
office or agency of the Company maintained pursuant to Section 502 in a Place
of Payment for such Securities. Upon
such surrender of temporary Securities, the Company shall, except as aforesaid,
execute and the Trustee shall authenticate and deliver in exchange therefor
definitive Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the same benefits (and
subject to all the same limitations of rights) under this Indenture as
definitive Securities of the same series and Tranche and of like tenor
authenticated and delivered hereunder.
SECTION
305
. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept in one of the
offices designated pursuant to Section 502, with respect to the Securities of
each series, or any Tranche thereof, a register (the
“Security
Register”
) in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities of
such series or Tranche and the registration of transfer thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each series and such
Person is referred to herein, with respect to such series, as the “
Security Registrar
”.
Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices as an office in which a register with
respect to the Securities of one or more series, or any Tranche or Tranches
thereof, shall be maintained, and the Company may designate itself the Security
Registrar with respect to one or more of such series. The Security Register shall be open for
inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any Tranche
thereof, upon presentment for registration of transfer of any Security of such
series or Tranche at the office or agency of the Company maintained pursuant to
Section 502 in a Place of Payment for such series or Tranche, and further upon
satisfaction of any conditions prescribed by applicable law, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one
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or more new Securities of the same series and Tranche,
of authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any Tranche
thereof, any Security of such series or Tranche may be exchanged at the option
of the Holder, for one or more new Securities of the same series and Tranche,
of authorized denominations and of like tenor and aggregate principal amount,
upon presentment of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so
presented for exchange, and upon satisfaction of any conditions prescribed by
applicable law, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits (and subject to the
same limitations of rights) under this Indenture, as the Securities presented
upon such registration of transfer or exchange.
Every Security presented for registration of transfer
or for exchange shall (if so required by the Company, the Trustee or the
Security Registrar) be duly endorsed or shall be accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee or the Security
Registrar, as the case may be, duly executed by the Holder thereof or his
attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section
301 with respect to Securities of any series, or any Tranche thereof, no
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 406 or 1106 not involving any transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of (a) Securities
of any series, or any Tranche thereof, during a period of fifteen (15) days
immediately preceding the date notice is to be given identifying the serial
numbers of the Securities of such series or Tranche called for redemption or
(b) any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION
306
. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is presented to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (a) evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such security or indemnity
as may be reasonably required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such
25
Security is held by a Person deemed to be a protected
purchaser under applicable law, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and Tranche, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, but subject to compliance
with the foregoing conditions, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the Trustee)
in connection therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security shall constitute
an additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone
other than the Holder of such new Security, and any such new Security shall be
entitled to all the benefits (and subject to all of the limitations of rights) of
this Indenture equally and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION
307
. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche thereof,
interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called
“Defaulted Interest”
),
shall forthwith cease to be payable to the Holder on the related Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:
(a)
The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
date (herein called a “
Special Record Date
”)
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall
26
make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more
than fifteen (15) days and not less than ten (10) days prior to the date of the
proposed payment and not less than ten (10) days after the receipt by the
Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall, not less than
ten (10) days prior to such Special Record Date, cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such
series at the address of such Holder as it appears in the Security Register. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date.
(b)
The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section
and Section 305, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
SECTION
308
. Persons Deemed Owners.
Prior to the due presentment of any Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Security is registered as
the absolute owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Section 307) interest, if
any, on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION
309
. Cancellation by Security Registrar.
All Securities presented for payment, redemption,
registration of transfer or exchange shall, if presented to any Person other
than the Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the Security
Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever or which the Company shall not have issued and sold, and
all Securities so delivered shall be promptly canceled by the Security Registrar. Unless by a
27
Company Order the Company shall direct that canceled
Securities be returned to it, all canceled Securities held by the Security
Registrar shall be disposed of in accordance with the Security Registrar’s
customary procedures, and the Security Registrar shall promptly deliver a
certificate of disposition to the Trustee and the Company. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance with this Section 309
to the Trustee and the Company.
SECTION
310
. Computation of Interest.
Except as otherwise specified as contemplated by Section
301 for Securities of any series, or any Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a three hundred
sixty (360) day year consisting of twelve (12) thirty (30) day months and, with
respect to any period less than a full calendar month, on the basis of the
actual number of days elapsed during such period.
SECTION
311
. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars or in a
composite currency (the
“Required Currency”
),
except as otherwise specified with respect to such Securities as contemplated
by Section 301, the obligation of the Company to make any payment of the
principal thereof, or the premium, if any, or interest, if any, thereon, shall
not be discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely holding the
full amount of the Required Currency then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the Required
Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and exchange
rate fluctuation, shall be borne by the Company, the Company shall remain fully
liable for any shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful misconduct, and if, as
a result, there shall be moneys on deposit with the Trustee in excess of the
payment due in the Required Currency, so long as no Default or Event of Default
shall have occurred and be continuing, the Trustee shall pay such excess to the
Company upon delivery of a Company Request.
The Company hereby waives any defense of payment based upon any such
tender or recovery which is not in the Required Currency, or which, when
exchanged for the Required Currency by the Trustee, is less than the full
amount or the Required Currency then due and payable.
SECTION
312
. Delivery of First Mortgage Bonds.
(a)
In order to provide security for the payment of the
principal of, premium, if any, and interest, if any, on the Securities of each
series, the Company, at any time prior to or concurrently with its delivery to
the Trustee of Securities of such series for authentication and delivery in
accordance with a Company Order pursuant to Section 303, shall deliver to the
Trustee, and the Trustee shall accept, First Mortgage Bonds registered in the
name of the Trustee:
28
(i) in
an aggregate principal amount equal to the aggregate principal amount of the
Securities of such series to be authenticated and delivered pursuant to such
Company Order;
(ii) with
a stated maturity date or dates that is or are the same as the Stated Maturity or
Stated Maturities of such Securities;
(iii) bearing
an interest rate (if any) equal to the interest rate (if any) borne by such
Securities;
(iv) having
interest payment dates that are the same as the Interest Payment Dates of such
Securities;
(v) containing
redemption provisions which correspond to redemption provisions in such
Securities and provisions providing for the mandatory redemption thereof by the
Company upon an acceleration of such Securities pursuant to Section 702;
(vi) in
all other material respects conforming as nearly as is practicable to the terms
of such Securities; and
(vii) in
such aggregate principal amounts of First Mortgage Bonds issued under the
Montana Mortgage and/or First Mortgage Bonds issued under the South Dakota
Mortgage and having such other terms, as shall be specified in the supplemental
indenture, Officer’s certificate or Board resolution establishing such
Securities.
(b)
Each First Mortgage Bond delivered to the Trustee hereunder
shall be in the form established by or in accordance with the related Mortgage
pursuant to which it is issued and with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by such
Mortgage, or are required or permitted by this Indenture and consistent with
such Mortgage.
(c)
As contemplated in Section 303, prior to the authentication
and delivery by the Trustee of Securities of any series, the Company shall
deliver to the Trustee, in addition to the documents with respect to the
Securities of such series specified in Section 303,
(i) a
First Mortgage Bond or First Mortgage Bonds conforming to Section 312(a) above;
(ii) an
Opinion of Counsel to the effect that:
(x) the
form or forms of such First Mortgage Bonds have been duly authorized by the
Company and have been established in conformity with the provisions of the
related Mortgage;
29
(y) the
terms of such First Mortgage Bonds have been duly authorized by the Company and
have been established in conformity with the provisions of the related Mortgage;
and
(z) such
First Mortgage Bonds, when authenticated and delivered by the trustee under the
related Mortgage and delivered to the Trustee
in accordance with this Indenture and issued and delivered by the Company in
the manner and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to Customary
Exceptions, entitled to the benefit and security of such Mortgage equally and
ratably with all other First Mortgage Bonds then “Outstanding” under and as
defined in such Mortgage (except as to any sinking fund or other analogous fund
with respect to any series of such bonds);
provided, however,
that, with respect to Securities of a series subject to a Periodic Offering,
the Trustee shall be entitled to receive such Opinion of Counsel only once at
or prior to the time of the first authentication and delivery of such
Securities and that, in lieu of the opinions described in clauses (B) and (C)
above, such Opinion of Counsel may be to the effect that:
(x) when
the terms of such First Mortgage Bonds shall have been established in
accordance with the instrument or instruments creating the series of which such
First Mortgage Bonds are a part, such terms will have been duly authorized by
the Company and will have been established in conformity with the provisions of
the related Mortgage; and
(y) such
First Mortgage Bonds, when authenticated and delivered by the trustee under the
related Mortgage in accordance with the instrument or instruments creating the
series of which such First Mortgage Bonds are a part, issued and delivered in
accordance with this Indenture and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to Customary Exceptions,
entitled to the benefit and security of such Mortgage equally and ratably with
all other First Mortgage Bonds then “Outstanding” under and as defined in such
Mortgage (except as to any sinking fund or other analogous fund with respect to
any series of such bonds); and
(iii) an
Expert’s Certificate as to the fair value to the Company of such First Mortgage
Bonds, except as permitted by Section 318(d).
(d)
Notwithstanding anything herein to the contrary, the
Trustee shall not be entitled to receive First Mortgage Bonds in connection
with the authentication and delivery of Securities of any series upon the
surrender in exchange therefor of Outstanding Securities
30
of another series,
of like tenor and aggregate principal amount, if and to the extent that the
Trustee shall retain the First Mortgage Bonds delivered to it in connection
with the authentication and delivery of the Securities being surrendered, as
contemplated in Section 315.
(e)
Each Security of a series shall specify the series of First
Mortgage Bonds under the Montana Mortgage and/or the series of First Mortgage
Bonds under the South Dakota Mortgage that secures the Securities of such series
(it being expressly stated, for the avoidance of any doubt, that the Securities
of a series may be secured by First Mortgage Bonds issued under only one of the
Mortgages). The First Mortgage Bonds
delivered pursuant to 312(a) hereof with respect to, and securing, the
Securities of any series are sometimes referred to herein as the “related” or “corresponding”
First Mortgage Bonds with respect to the Securities of such series; and with
respect to any such First Mortgage Bonds, the Securities of the series so
secured by such First Mortgage Bonds are sometimes referred to as the “related”
or “corresponding” series of Securities.
SECTION
313
. Registration and Ownership of First Mortgage
Bonds; First Mortgage Bonds as security for Securities
The First Mortgage Bonds delivered to the Trustee
pursuant to Section 312 shall be registered in the name of the Trustee and
shall be owned and held in trust by the Trustee, subject to the provisions of
this Indenture, for the equal and proportionate benefit and security of the
Holders from time to time of the corresponding series of Securities and the
Company shall have no interest therein (other than as payor and obligor with
respect thereto); and such First Mortgage Bonds shall serve as security for (i)
the full and prompt payment of the principal of and premium, if any, on such
Securities when and as the same shall become due in accordance with the terms
and provisions of such Securities and this Indenture, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise,
and (ii) the full and prompt payment of interest (if any) on such Securities
when and as the same shall become due in accordance with the terms and
provisions of such Securities and this Indenture. The Trustee as holder of First Mortgage Bonds
delivered to the Trustee pursuant to Section 312 shall be entitled to exercise
all rights of a security holder of such First Mortgage Bonds under the related Mortgage
or Mortgages, either in its discretion or as otherwise provided in this Article
or in Article Seven.
If, notwithstanding the intention of the parties
expressed in this Section 313, it shall be finally determined by an appropriate
court that the Company has any interest in any First Mortgage Bonds delivered
to and held by the Trustee pursuant to this Indenture (other than as payor and
obligor with respect thereto), the Company hereby, to the extent permitted by
law, grants to the Trustee, for the benefit of the Holders of the Outstanding
Securities of the series secured by such First Mortgage Bonds, a security
interest in such interest of the Company in such First Mortgage Bonds and all
proceeds thereof. Such security
interest, together with the other provisions of this Article Three, are
referred to herein and constitute the “lien of this Indenture” on such First
Mortgage Bonds.
31
SECTION
314
. Amounts Payable On and Credited Against First
Mortgage Bonds.
(a)
Amounts Payable Under
First Mortgage Bonds.
Payments
of principal of, premium (if any) or interest that become due on First Mortgage
Bonds delivered to and held by the Trustee pursuant to this Indenture on any
day shall correspond to, and be equal in aggregate amount to, the payment of
principal of, premium (if any) or interest that becomes due on the Securities
of the related series on such day. If
the Securities of a series are secured by more than one series of related First
Mortgage Bonds (whether issued under the same Mortgage or under different
Mortgages), the portions of the principal of, premium (if any) and/or interest
(if any) due on the Securities of such series on any day that are payable
under, and secured by, the respective series of the related First Mortgage
Bonds will be determined on the basis set forth in the indenture supplemental
hereto, the Officer’s Certificate or the Board Resolution which establishes
such series of securities (referred to herein, with respect to a series of
Securities and the related First Mortgage Bonds, as the “
Applicable
Basis
”).
(b)
Crediting of Payments on
Securities Against First Mortgage Bond Obligations.
Consistent with the intention of
the parties expressed in Section 313 and elsewhere in this Article that First
Mortgage Bonds delivered to and held by the Trustee pursuant to this Indenture
are delivered for the benefit of holders of the related series of Securities to
provide security for payments due on such Securities, it is also the intention
of the parties that the Company will make payments to the Trustee of principal
of, premium (if any) and/or interest (if any) on the related series of
Securities (rather than payments to the trustee(s) under the related
Mortgage(s) of corresponding amounts payable on such First Mortgage
Bonds). Accordingly:
(i) the
payment by the Company of the principal of, premium (if any) or interest (if
any) that is payable on the Securities of a series on any day shall, to the
extent thereof (and, if there is more than one series of related First Mortgage
Bonds, on the Applicable Basis with respect to such First Mortgage Bonds) be
deemed to satisfy and discharge the obligation of the Company to make
corresponding payments of principal of, premium (if any) or interest (if any) on
the related First Mortgage Bonds on such day; and
(ii) absent
advice to the contrary from the Trustee, the trustees under the related
Mortgage(s) may assume that payments on First Mortgage Bonds delivered to and
held by the Trustee pursuant to this Indenture have been satisfied from
payments on the related series of Securities.
(c)
Crediting of Payments On
First Mortgage Bonds Against Securities Obligations.
If, notwithstanding the intention
of the parties (as described above) and for any reason, the Trustee receives
actual payments (rather than payments which are deemed made by crediting
payments by the Company on the related series of Securities) on First Mortgage
Bonds delivered to and held by the Trustee pursuant to this Indenture:
(i) If,
at the time of receipt by the Trustee of such payment, any principal of,
premium (if any), or interest on the related series of Securities is due
32
and payable, such
payment on such First Mortgage Bonds shall be applied by the Trustee to the
payment of such principal of, premium (if any) or interest on the related
series of Securities which is so due (and, to the extent of such application,
the obligation of the Company hereunder and under such Securities to make such
payment shall be deemed satisfied and discharged);
(ii) If,
at the time of receipt by the Trustee of any such payment of principal of such
First Mortgage Bonds, there shall be no principal then due in respect of the
related series of Securities, such payment of principal of such First Mortgage
Bonds shall be held by the Trustee, in trust, and shall be applied by the
Trustee to the payment of the principal of an equal principal amount of such
Securities at Maturity; and pending such application, such payment may be
invested, at the direction of the Company, in Cash Equivalents, pursuant to a
Company Order directing such investment and accompanied by an Officer’s
Certificate stating that no Default or Event of Default has occurred and is
continuing; and
(iii) If,
at the time of receipt by the Trustee of any such payment of premium or
interest on such First Mortgage Bonds, there shall be no premium or interest,
as the case may be, then due in respect of the related series of Securities,
such payment of premium or interest on such First Mortgage Bonds shall be remitted
by the Trustee to the Company upon receipt by the Trustee of a Company Order
requesting the same, together with an Officer’s Certificate stating that no
Event of Default has occurred and is continuing; provided, however, that, if an
Event of Default shall have occurred and be continuing, such proceeds shall be
held by the Trustee, in trust, until such Event of Default shall have been
cured or waived.
SECTION
315
. Surrender of First Mortgage Bonds.
(a)
If, at any time, all or any part of the Securities of a series
cease to be Outstanding:
(i) the
obligation of the Company to make payment of the principal of, premium (if any)
and interest (if any) on an equal principal amount of the related First
Mortgage Bonds shall be deemed satisfied and discharged (and, if there is more
than one series of related First Mortgage Bonds, on the Applicable Basis with
respect to the related First Mortgage Bonds) without further act on the part
of, or fulfillment of any further condition by, any Person; and
(ii) the
Trustee shall surrender to, or upon the order of, the Company an equal
principal amount of the related First Mortgage Bonds (and, if there is more
than one series of related First Mortgage Bonds, such surrender shall be on the
Applicable Basis with respect to the related First Mortgage Bonds), in each
case upon fulfillment of the following conditions:
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(x)
receipt
by the Trustee of a Company Order requesting the surrender of such First
Mortgage Bonds; and
(y)
receipt
by the Trustee of an Expert’s Certificate as to the fair value of such First
Mortgage Bonds, except as permitted by Section 318(d); and
(b)
Notwithstanding the
foregoing, in the event that Outstanding Securities of any series are
surrendered in exchange for Securities of another series, of like tenor and
aggregate principal amount, the Trustee shall retain the First Mortgage Bonds
delivered in connection with the authentication and delivery of the Securities
being surrendered unless the Company, at its election, shall tender new First
Mortgage Bonds in substitution therefor.
(c)
Notwithstanding anything
in this Indenture to the contrary, the Company shall not cause the surrender by
the Trustee, as contemplated in this Section 315, of First Mortgage Bonds delivered
to and held by the Trustee pursuant to this Indenture as security for a series
of Securities if, after such surrender, the aggregate principal amount of such First
Mortgage Bonds then outstanding that would continue to be so held by the
Trustee would be less than the aggregate principal amount of Securities of such
series that are then Outstanding (or, if after such surrender, the respective
principal amounts of such First Mortgage Bonds of different series would be
other than on the same Applicable Basis as before such surrender).
(d)
Notwithstanding anything
in this Indenture to the contrary, each surrender of any First Mortgage Bonds
in accordance with this Section 315 shall be and constitute a termination
of the lien of this Indenture on such First Mortgage Bonds in accordance with,
and permitted by, this Indenture.
SECTION 316.
No
Transfer of First Mortgage Bonds.
Anything in this
Indenture to the contrary notwithstanding, the Trustee shall not sell, assign
or otherwise transfer any First Mortgage Bonds delivered to and held by it
pursuant to this Article except to a successor trustee under this
Indenture and except as provided in Section 315. The Company may take such actions as it shall
deem necessary, desirable or appropriate to effect compliance with such
restrictions on transfer, including the placing of a legend on each such First
Mortgage Bond and the issuance of stop-transfer instructions to the trustee
under the related Mortgage or any other transfer agent thereunder.
SECTION 317.
Voting of First Mortgage Bonds.
The Trustee shall, as the
holder of First Mortgage Bonds delivered to and held by it pursuant to Sections
312 and 313, attend such meeting or meetings of bondholders under the related Mortgage(s)
or, at its option, deliver its proxy in connection therewith, as relate to
matters with respect to which it, as such holder, is entitled to vote or
consent. So long as no Event of Default
hereunder shall have occurred and be continuing, either at any such meeting or
meetings, or otherwise when the consent of the holders of the First Mortgage
Bonds Outstanding under the related Mortgage(s) is sought without a meeting,
the Trustee shall vote as holder of First Mortgage Bonds delivered to and held
by it pursuant to this Article which were delivered under such Mortgage(s),
or shall consent with respect thereto, proportionately with the vote or consent
34
of the holders of
all other First Mortgage Bonds Outstanding under such Mortgage(s) the holders
of which are eligible to vote or consent, as indicated in a First Mortgage
Bondholder’s Certificate delivered to the Trustee; provided, however, that the
Trustee shall not so vote in favor of, or so consent to, any amendment or
modification of a Mortgage which, if it were an amendment or modification of
this Indenture, would require the consent of Holders, without the prior
consent, obtained in the manner prescribed in Section 1102, of Holders of
Securities which would be required under said Section 1102 for such an
amendment or modification of this Indenture.
For purposes of this
Section,
“First Mortgage Bondholder’s Certificate”
means a certificate signed by the temporary chairman, the temporary secretary,
the permanent chairman, the permanent secretary, or an inspector of votes at
any meeting or meetings of bondholders under a Mortgage, or by the trustee
under such Mortgage in the case of consents of such bondholders which are
sought without a meeting, which states what the signer thereof reasonably
believes will be the proportionate votes or consents of the holders of all
First Mortgage Bonds (other than the First Mortgage Bonds delivered to and held
by the Trustee pursuant to this Article) outstanding under such Mortgage and
counted for the purposes of determining whether such bondholders have approved
or consented to the matter put before them.
SECTION 318.
Experts’
Certificates.
(a)
Each Expert’s
Certificate as to the fair value to the Company of First Mortgage Bonds
delivered to the Trustee pursuant to Section 312, or as to the fair value
of First Mortgage Bonds to be surrendered pursuant to Section 315, shall
be made by an Independent Expert if the fair value to the Company of such First
Mortgage Bonds so delivered and of all other First Mortgage Bonds so delivered,
or the fair value of the First Mortgage Bonds to be so surrendered and of all
other First Mortgage Bonds so surrendered, as the case may be, since the
commencement of the then current calendar year, as set forth in the
certificates required by this Indenture, is ten percentum (10%) or more of the
aggregate principal amount of the Securities at the time Outstanding; but such
Expert’s Certificate shall not be required to be made by an Independent Expert
in the case of any delivery or surrender of First Mortgage Bonds if the fair
value to the Company thereof or the fair value thereof, as the case may be, and
as set forth in the certificates required by this Indenture, is less than
Twenty-five Thousand Dollars ($25,000) or less than one percentum (1%) of the
aggregate principal amount of the Securities at the time Outstanding.
(b)
Each Expert’s Certificate
with respect to the fair value of First Mortgage Bonds being surrendered shall
state that, in the opinion of the signer, such surrender will not impair the
security under this Indenture in contravention of the provisions hereof; it
being understood, however, that no surrender of First Mortgage Bonds effected
in accordance with the provisions, and in compliance with the conditions, set
forth in Section 315 shall be deemed to impair the security of this
Indenture in contravention of any provision hereof.
(c)
In assessing the fair
value to the Company or the fair value, as the case may be, of any First
Mortgage Bond, an Expert may (but need not) consider, among other things, (i)
the principal amount and remaining term to Stated Maturity of, the interest
rate, if any, on and the redemption provisions contained in such First Mortgage
Bond, (ii) the creditworthiness of the Company, including the effect, if any,
of the prospective delivery or
35
surrender of such First Mortgage Bonds on the ratings assigned to the
Securities by nationally recognized statistical rating organizations, (iii)
prevailing economic and market conditions, (iv) the restrictions on the
transfer of such First Mortgage Bond contained in Section 316, (v) whether
or not, at the time of such assessment, the obligations of the Company in
respect of such First Mortgage Bond shall, under the provisions of the related
Mortgage or under the provisions of this Indenture, or both, be deemed to have
been satisfied and discharged, (vi) the effect, if any, of the prospective
delivery or surrender of such First Mortgage Bond on the nature and extent of
the security and/or protection available to the Holders under this Indenture
and (vii) any other relevant factors. In
addition, in assessing the fair value to the Company or the fair value, as the
case may be, of any First Mortgage Bond, an Expert may (but need not) determine
that such fair value equals (a) the aggregate principal amount to be due and
owing on such First Mortgage Bond or (b) the fair value of the related Security
or Securities, upon the basis of which such First Mortgage Bond was delivered
to the Trustee.
(d)
Anything in this
Indenture to the contrary notwithstanding, the Company shall not be required to
deliver any Expert’s Certificate pursuant to Section 312 or 315 if, in any
particular case, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Expert’s Certificate otherwise required to be
delivered shall not, in such case, be required by, or this Indenture is not
required to be qualified under, the Trust Indenture Act.
SECTION 319.
No Modification of First Mortgage Bonds by
Indenture.
The rights, powers,
obligations and duties of the Company and the trustees under the Mortgages and
the First Mortgage Bonds are governed exclusively by the terms thereof; and
nothing in this Indenture constitutes an amendment or modification of any term
or provision of the Mortgages or the First Mortgage Bonds, or creates any obligation
of the Company under or in respect of the First Mortgage Bonds (except to the
extent of an express covenant of the Company contained in this Indenture) or
any right of the Trustee with respect to the Mortgages or the First Mortgage
Bonds (except as the owner and holder of First Mortgage Bonds delivered to and
held by the Trustee or, in the circumstances described in Section 313, as
the holder of a Lien on the Company’s interest in such First Mortgage Bonds).
SECTION 320.
Other Responsibilities of Trustee With
Respect to First Mortgage Bonds.
The Trustee shall, with
respect to First Mortgage Bonds delivered to and held by the Trustee pursuant
to this Indenture, give such notices and information to the trustees under the
Mortgages as are required by the terms of such First Mortgage Bonds and/or
stated in such First Mortgage Bonds to be notices and information which the
Trustee, pursuant to this Indenture, has agreed to give or submit to such
trustees. Without limitation of the
foregoing (or of any provision of Article Seven), the Trustee shall: (i)
within five days after any failure by the Company to pay, when due, principal
of, premium (if any) or interest (if any) on the Securities of any series, give
to the trustee(s) under the Mortgage(s) pertaining to the related First
Mortgage Bonds notice of such failure in accordance with, and as contemplated
by, such First Mortgage Bonds; (ii) within five days after each redemption, in
whole or in part, of the Securities of any series, give to the trustee(s) under
the Mortgage(s) pertaining to the related First Mortgage Bonds
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notice of such
redemption in accordance with, and as contemplated by, such First Mortgage
Bonds; and (iii) promptly after each request therefor by the Company, give to
the Company and the trustee(s) under the Mortgage(s) notice of the aggregate
principal amount of the Securities of each series that are then Outstanding.
The Company, at its own
expense, shall do such further lawful acts and things, and execute and deliver
such additional conveyances, assignments, assurances, agreements, financing
statements and instruments, as may be necessary and as the Trustee may request in
order to better assign, assure, perfect and confirm to the Trustee its interest
in the First Mortgage Bonds in accordance with this Article Three and for
maintaining, protecting and preserving such interest.
Redemption
of Securities
SECTION 401.
Applicability of Article.
Securities of any series,
or any Tranche thereof, which are redeemable before their Stated Maturity shall
be redeemable in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or Tranche)
in accordance with this Article.
SECTION 402.
Election to Redeem; Notice to Trustee.
The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution or an
Officer’s Certificate. The Company
shall, at least forty-five (45) days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the
case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer’s Certificate evidencing
compliance with such restriction or condition.
SECTION 403.
Selection of Securities to Be Redeemed.
If less than all the Securities
of any series, or any Tranche thereof, are to be redeemed, the particular
Securities to be redeemed shall be selected by the Security Registrar from the
Outstanding Securities of such series or Tranche not previously called for
redemption, by such method as shall be provided for any particular series or
Tranche, or, in the absence of any such provision, by such method of random
selection as the Security Registrar shall deem fair and appropriate and which
may, in any case, provide for the selection for redemption of portions (in any
authorized denomination for Securities of such series or Tranche) of the
principal amount of Securities of such series or Tranche having a denomination
larger than the minimum authorized denomination for Securities of such series
or Tranche; provided, however, that if, as
37
indicated in an
Officer’s Certificate, the Company shall have offered to purchase all or any
principal amount of the Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities as to which such offer
was made shall have been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which have not been
so tendered.
The Security Registrar
shall promptly notify the Company and the Trustee in writing of the Securities
selected for redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
Notice of redemption
shall be given in the manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than thirty (30) nor more than sixty (60)
days prior to the Redemption Date.
All notices of redemption
shall state:
(a)
the Redemption Date,
(b)
the Redemption Price,
(c)
if less than all the
Securities of any series or Tranche are to be redeemed, the identification of
the particular Securities to be redeemed and the portion of the principal
amount of any Security to be redeemed in part,
(d)
that on the Redemption
Date the Redemption Price, together with accrued interest, if any, to the
Redemption Date, will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(e)
the place or places
where such Securities are to be surrendered for payment of the Redemption Price
and accrued interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that such
surrender shall not be required,
(f)
that the redemption is
for a sinking or other fund, if such is the case, and
(g)
such other matters as the
Company shall deem desirable or appropriate.
With respect to any
notice of redemption of Securities at the election of the Company, unless, upon
the giving of such notice, such Securities shall be deemed to have been
38
paid in accordance
with Section 602, such notice may state that such redemption shall be
conditional upon the receipt by the Paying Agent or Agents for such Securities,
on or prior to the date fixed for such redemption, of money sufficient to pay
the principal of and premium, if any, and interest, if any, on such Securities
and that if such money shall not have been so received such notice shall be of
no force or effect and the Company shall not be required to redeem such
Securities. In the event that such
notice of redemption contains such a condition and such money is not so
received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not required to be made, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the Holders thereof
any of such Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of
Securities to be redeemed at the election of the Company, and any notice of
non-satisfaction of a condition for redemption as aforesaid, shall be given by
the Company or, upon Company Request, by the Security Registrar in the name and
at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security Registrar in
the name and at the expense of the Company.
SECTION 405.
Securities Payable on Redemption Date.
Notice of redemption
having been given as aforesaid, and the conditions, if any, set forth in such
notice having been satisfied, the Securities or portions thereof so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless, in
the case of an unconditional notice of redemption, the Company shall default in
the payment of the Redemption Price and accrued interest, if any) such
Securities or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such
Security for redemption in accordance with such notice, such Security or
portion thereof shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so specified as
contemplated by Section 301 with respect to such Security; and provided, further,
that, except as otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest on any Security the
Stated Maturity of which installment is on or prior to the Redemption Date
shall be payable to the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business on the related Regular
Record Date according to the terms of such Security and subject to the
provisions of Section 307.
SECTION 406.
Securities Redeemed in Part.
Upon the surrender of any
Security which is to be redeemed only in part at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company or the
Trustee, as the case may be, duly executed by, the Holder thereof or his
attorney duly authorized in writing), the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same series and Tranche, of
any authorized denomination requested by such Holder and of like tenor and in
aggregate
39
principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
SECTION 501
. Payment of Securities.
The Company shall pay the
principal of and premium, if any, and interest, if any, on the Securities of
each series in accordance with the terms of such Securities and this Indenture.
SECTION 502.
Maintenance of Office or Agency.
The Company shall
maintain in each Place of Payment for the Securities of each series, or any
Tranche thereof, an office or agency where payment of such Securities shall be
made, where the registration of transfer or exchange of such Securities may be
effected and where notices and demands to or upon the Company in respect of
such Securities and this Indenture may be served. The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of each such
office or agency and prompt notice to the Holders of any such change in the
manner specified in Section 106. If
at any time the Company shall fail to maintain any such required office or
agency in respect of Securities of any series, or any Tranche thereof, or shall
fail to furnish the Trustee with the address thereof, payment of such
Securities shall be made, registration of transfer or exchange thereof may be
effected and notices and demands in respect thereof may be served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from
time to time designate one or more other offices or agencies with respect to
the Securities of one or more series, or any Tranche thereof, for any or all of
the foregoing purposes and may from time to time rescind such designations;
provided, however, that, unless otherwise specified as contemplated by Section 301
with respect to the Securities of such series or Tranche, no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency for such purposes in each Place of Payment for
such Securities in accordance with the requirements set forth above. The Company shall give prompt written notice
to the Trustee, and prompt notice to the Holders in the manner specified in Section 106,
of any such designation or rescission and of any change in the location of any
such other office or agency.
Anything herein to the
contrary notwithstanding, any office or agency required by this Section may
be maintained at an office of the Company, in which event the Company shall
perform all functions to be performed at such office or agency.
SECTION 503.
Money
for Securities Payments to Be Held in Trust.
If the Company shall at
any time act as its own Paying Agent with respect to the Securities of any
series, or any Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of such
Securities, segregate and
40
hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided. The Company shall promptly notify the Trustee
of any failure by the Company (or any other obligor on such Securities) to make
any payment of principal of or premium, if any, or interest, if any, on such
Securities.
Whenever the Company
shall have one or more Paying Agents for the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities, deposit with such
Paying Agents sums sufficient (without duplication) to pay the principal and
premium or interest so becoming due, such sums to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall promptly notify the
Trustee of any failure by it so to act.
The Company shall cause
each Paying Agent for the Securities of any series, or any Tranche thereof,
other than the Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent shall:
(a)
hold all sums held by it
for the payment of the principal of and premium, if any, or interest, if any,
on such Securities in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(b)
give the Trustee notice
of any failure by the Company (or any other obligor upon such Securities) to
make any payment of principal of or premium, if any, or interest, if any, on
such Securities; and
(c)
at any time during the
continuance of any such failure, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent and
furnish to the Trustee such information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any
time pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent and, if so stated in a Company Order
delivered to the Trustee, in accordance with the provisions of Article Six;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.
Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such principal and
premium, if any, or interest, if any, has become due and payable shall be paid
to the Company on Company Request, or, if then held by the Company, shall be
discharged from such trust; and, upon such payment or discharge, the Holder of
such Security shall, as an unsecured general creditor and not as the
41
Holder of an
Outstanding Security, look only to the Company for payment of the amount so due
and payable and remaining unpaid, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such payment to the
Company, may at the expense of the Company cause to be mailed, on one occasion
only, notice to such Holder that such money remains unclaimed and that, after a
date specified therein, which shall not be less than thirty (30) days from the
date of such mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
Subject to the rights of
the Company under Article Ten (or with respect to any series of
Securities, any similar or other rights contained in the supplemental
indenture, Board Resolution or Officer’s Certificate establishing the terms of
the Securities of such series), the Company shall do or cause to be done all
things necessary to preserve and keep its corporate existence and its rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of its business and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 505.
Annual Officer’s Certificates to Compliance.
Not later than April 15
in each year, commencing April 15, 2005, the Company shall deliver to the
Trustee an Officer’s Certificate which need not comply with Section 102,
executed by the principal executive officer, the principal financial officer or
the principal accounting officer of the Company, as to such officer’s knowledge
of the compliance by the Company and its Restricted Subsidiaries with all
conditions and covenants under this Indenture, such compliance to be determined
without regard to any period of grace or requirement of notice under this
Indenture.
SECTION 506.
Maintenance of Properties.
The Company shall cause
(or, with respect to property owned in common with others, make reasonable
effort to cause) all its properties used or useful in the conduct of its
businesses, considered as a whole, to be maintained and kept in good condition,
repair and working order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made such repairs,
renewals, replacements, betterments and improvements thereof, as, in the
judgment of the Company, may be necessary in order that the operation of such
properties, considered as a whole, may be conducted in accordance with common
industry practice; provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the discontinuance of, the
operation and maintenance of any of its properties; and provided, further, that
nothing in this Section shall prevent the Company from selling, transferring
or otherwise disposing of, or causing the sale, transfer or other disposition
of, any of its properties if such discontinuance, sale, transfer or other
disposition is, in the judgment of the Company, desirable in the conduct of its
business.
42
SECTION 507.
Payment of Taxes and Other Claims.
The Company will pay or
discharge or cause to be paid or discharged, before the same shall be
delinquent, (1) all taxes, assessments, and governmental charges levied or
imposed upon it or its income, profits or property, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon its property;
provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge, levy or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 508.
Waiver of Certain Covenants.
The Company may omit in
any particular instance to comply with any term, provision or condition set
forth in
(a)
any covenant or
restriction specified with respect to the Securities of any one or more series,
or any Tranche or Tranches thereof, as contemplated by Section 301, or as
provided pursuant to Section 1101(f), if before the time for such
compliance the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches with respect to which
compliance with such covenant or restriction is to be omitted, considered as
one class, shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition;
provided, however, that no such waiver shall be effective as to any matters
contemplated in clause (a), (b) or (c) in Section 1102 without consent of
the Holders specified in such Section; and
(b)
Section 504, 506 or
507 if before the time for such compliance the Holders of a majority in
principal amount of Securities Outstanding under this Indenture shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition;
but, in either case, no
such waiver shall extend to or affect such term, provision or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Defeasance
, Satisfaction and Discharge
SECTION 601.
Option to Effect Legal Defeasance or Covenant
Defeasance.
Except as otherwise
specified as contemplated by Section 301 for Securities of any series, the
provisions of this Article Six shall apply to each series of Securities,
and the Company may, at its option evidenced by a Board Resolution, at any
time, elect to have either Section 602 or 603 hereof be applied to the
Outstanding Securities of any series upon compliance with the conditions set
forth below in this Article Six.
43
SECTION 602.
Legal
Defeasance and Discharge.
Upon the Company’s
exercise under Section 601 hereof of the option to apply this Section 602
to the Outstanding Securities of any series, the Company shall, subject to the
satisfaction of the conditions set forth in Section 604 hereof, be deemed
to have been discharged from its obligations with respect to such Securities on
the date the conditions set forth in Section 604 are satisfied
(hereinafter, “legal defeasance”). For
this purpose, Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by such Securities,
which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 608
hereof and the other Sections of this Indenture referred to in (a) through
(d) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such
Securities to receive solely from the trust fund described in Section 604
hereof, and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such Securities, when such
payments are due, (b) the Company’s obligations with respect to such
Securities under Sections 305, 306, 307, 402, 404, 502 and 503 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company’s obligations in connection therewith and
(d) this Article Six. Subject
to compliance with this Article Six, the Company may exercise its option
under this Section 602 notwithstanding the prior exercise of its option
under Section 603 hereof.
Upon the Company’s
exercise under Section 601 hereof of the option to apply this Section 603
to the Outstanding Securities of any series, the Company shall, subject to the
satisfaction of the conditions set forth in Section 604 hereof, be released
from its obligations under (a) the covenants contained in Sections 504, 506, 507
and 1001 hereof and (b), if specified pursuant to Section 301(p) or Section 1101(b)
hereof, any covenant established with respect to the Securities of such series
pursuant to Section 301(p) or Section 1101(b) (each such covenant,
including those referred to in clause (a), hereinafter a “defeasible covenant”),
with respect to such Outstanding Securities on and after the date the
conditions set forth in Section 604 hereof are satisfied (hereinafter, “Covenant
Defeasance”), and the occurrence of an event specified in Section 701(c) and
Section 701(g) with respect to such defeasible covenant shall not be
deemed to be an Event of Default with respect to the Outstanding Securities of
such series; and such Securities shall thereafter be deemed not “Outstanding”
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with such
defeasible covenants, but shall continue to be deemed “Outstanding” for all
other purposes hereunder. For this
purpose, covenant defeasance means that, with respect to the Outstanding
Securities of such series, the Company may omit to comply with and shall have
no liability or obligation in respect of any term, condition or limitation set
forth in any such defeasible covenant whether directly or indirectly by reason
of any reference elsewhere herein to any such defeasible covenant or by reason
of any reference in any such defeasible covenant to any other provision herein
or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
44
SECTION 604.
Conditions to Legal or Covenant Defeasance.
The following shall be
the conditions to the application of either Section 602 or 603 hereof to
the Outstanding Securities of any series:
(a)
The Company shall have
irrevocably deposited or caused to be deposited with the Trustee, as trust funds
in trust, for the purpose of making the following payments on such Securities
and specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities, (i) money in United States dollars in an
amount, (ii) Eligible Obligations which do not contain provisions permitting
the redemption or other prepayment thereof at the option of the issuer thereof,
and which, through the scheduled payment of principal and interest in respect
thereof in accordance with their terms, will provide, not later than one day
before the due date of any payment, money in an amount, or (iii) a combination
thereof, in each case sufficient, without reinvestment, in the opinion of a
nationally recognized firm of independent public accountants, expressed in a
written certification thereof delivered to the Trustee, to pay the principal
of, premium, if any, and interest on such Securities on the due dates
thereof. Before such a deposit, the
Company may make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article Four,
which shall be given effect in applying the foregoing.
(b)
In connection with legal
defeasance election under Section 602 hereof, the Company shall have
delivered to the Trustee, an Opinion of Counsel confirming that (A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders
of the outstanding Securities subject to legal defeasance will not recognize
income, gain or loss for federal income tax purposes as a result of such legal
defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such legal
defeasance had not occurred;
(c)
In the case of a
covenant defeasance election under Section 603 hereof, the Company shall
have delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee confirming that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred;
(d)
No Default or Event of
Default with respect to the Securities of such series shall have occurred and
be continuing (i) on the date of such deposit or (ii) insofar as Sections 701(d)
or 701(e) hereof is concerned, at any time in the period ending on the 91st day
after the date of deposit or, if longer, ending on the day following the
expiration of the longest preference period applicable to the Company in
respect of such deposit (it being understood that the condition in this clause
(ii) shall not be deemed satisfied until the expiration of such period);
45
(e)
Such legal defeasance or
covenant defeasance will not result in a breach or violation of, or constitute
a default under any material agreement or instrument (other than this
Indenture) to which the Company or any of its Restricted Subsidiaries is a
party or by which the Company or any of its Restricted Subsidiaries is bound;
(f)
Such legal defeasance
or covenant defeasance shall not cause any Securities of such series then
listed on any national securities exchange registered under the Exchange Act to
be delisted; and
(g)
The Company shall have
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for or relating to the
Legal Defeasance or the Covenant Defeasance have been complied with.
SECTION 605.
Miscellaneous Provisions
(a)
If payment at Stated
Maturity of less than all of the Securities of any series is to be provided for
in the manner and with the effect provided in this Article Six, the
Security Registrar shall select such Securities, or portions of principal
amount thereof, in the manner specified by Section 403 for selection for
redemption of less than all the Securities of a series or Tranche.
(b)
In the event that
Securities which shall be deemed to have been paid for purposes of this
Indenture, and, if such is the case, in respect of which the Company’s
indebtedness shall have been satisfied and discharged, all as provided in this Article Six,
do not mature and are not to be redeemed within the sixty (60) day period
commencing with the date of the deposit of moneys or Eligible Obligations, as
aforesaid, the Company shall, as promptly as practicable, give a notice, in the
same manner as a notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has been made and
the effect thereof.
Anything herein to the
contrary notwithstanding, (a) if, at any time after a Security would be deemed
to have been paid for purposes of this Indenture, and, if such is the case, the
Company’s indebtedness in respect thereof would be deemed to have been
satisfied and discharged, pursuant to this Section (without regard to the
provisions of this paragraph), the Trustee or any Paying Agent, as the case may
be, (i) shall be required to return the money or Eligible Obligations, or
combination thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy, insolvency or
other similar law or (ii) are unable to apply any money held by the Trustee as
provided in this Section and Section 603 with respect to such
Security by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
such Security shall thereupon be deemed retroactively not to have been paid and
any satisfaction and discharge of the Company’s indebtedness in respect thereof
shall retroactively be deemed not to have been effected, and such Security
shall be deemed to remain Outstanding and (b) any satisfaction and discharge of
the Company’s indebtedness in respect of any Security shall be subject to the
provisions of the last paragraph of Section 503.
46
SECTION 607.
Satisfaction and Discharge of Indenture.
This Indenture shall upon
Company Request cease to be of further effect (except as hereinafter expressly
provided), and the Trustee, at the expense of the Company, shall execute such
instruments as the Company shall reasonably request to evidence and acknowledge
the satisfaction and discharge of this Indenture, when:
(a)
no Securities remain
Outstanding hereunder; and
(b)
the Company has paid or
caused to be paid all other sums payable hereunder by the Company;
provided, however,
that if, in accordance with Section 606, any Security, previously deemed
to have been paid for purposes of this Indenture, shall be deemed retroactively
not to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as aforesaid, and to
remain in full force and effect, and the Company shall execute and deliver such
instruments as the Trustee shall reasonably request to evidence and acknowledge
the same.
Notwithstanding the
satisfaction and discharge of this Indenture as aforesaid, the obligations of
the Company and the Trustee under Sections 304, 305, 306, 404, 502, 503, 807
and 814 and this Article shall survive.
Upon satisfaction and
discharge of this Indenture as provided in this Section, the Trustee shall turn
over to the Company any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities (including,
without limitation, all First Mortgage Bonds then held by the Trustee pursuant
to this Indenture, but excluding all money and Eligible Obligations held by the
Trustee pursuant to Section 607) and shall execute and deliver to the
Company such instruments as, in the judgment of the Company, shall be
necessary, desirable or appropriate to effect or evidence the satisfaction and
discharge of this Indenture.
SECTION 608.
Application of Trust Money.
(a)
Subject to the
provisions of Section 503, all money and Eligible Obligations (including
principal or interest payments on any such Eligible Obligations) deposited with
the Trustee pursuant to Section 604 in respect of the Outstanding
Securities of any series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (but not including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal, premium, if any, or interest, but such money need not be
segregated from other funds except to the extent required by law.
(b)
So long as there shall
not have occurred and be continuing any Default or Event of Default, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Eligible Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 604 which, in the opinion of
a nationally
47
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent legal defeasance or covenant defeasance, as applicable, in
accordance with this Article; provided that, if any Default or Event of Default
shall have occurred and be continuing, moneys to be paid over to the Company
pursuant to this clause (b), shall be held until such Default or Event of
Default shall have been waived or cured.
(c)
The Company shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the money or Eligible Obligations deposited pursuant to Section 604
or the principal and interest received in respect thereof.
“Event of Default”
,
wherever used herein with respect to the Securities of any series, means any of
the following events:
(a)
failure to pay interest,
if any, on any Security of such series, within thirty (30) days after the same
becomes due and payable; or
(b)
failure to pay the
principal of or premium, if any, on any Security of such series when due; or
(c)
failure by the Company
or any of its Restricted Subsidiaries to perform, or breach of, any covenant or
warranty of the Company or such Restricted Subsidiary in this Indenture (other
than a covenant or warranty, a default in the performance of which or breach of
which is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of one or more
series of Securities other than such series) for a period of sixty (60) days
after there has been given, by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by the Holders of at least
twenty-five percentum (25%) in principal amount of the Outstanding Securities
of such series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
“Notice of Default”
hereunder; or
(d)
the entry by a court having
jurisdiction in the premises of (i) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons other than the Company seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
for the Company or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and any such decree or order for
relief or any such other decree or order shall have remained unstayed and in
effect for a period of ninety (90) consecutive days; or
48
(e)
the commencement by the
Company of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the
authorization of such action by the Board of Directors; or
(f)
the occurrence of an “Event
of Default” under the South Dakota Mortgage or a “Default” under the Montana
Mortgage;
provided
that the waiver or cure of such
“Event of Default” under the South Dakota Mortgage or such “Default” under the
Montana Mortgage, as the case may be, and the rescission and annulment of the
consequences thereof under such Mortgage, in each case in accordance with the
terms of such Mortgage, shall constitute a cure of the corresponding Event of
Default under this Indenture and a rescission and annulment of the consequences
thereof; or
(g)
any other Event of
Default specified with respect to such Securities as contemplated by Section 301(o)
or Section 1101(c).
SECTION 702.
Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default
(other than an Event of Default specified in clause (d) or (e) of Section 701
hereof) shall have occurred and be continuing with respect to Securities of any
series at the time Outstanding, then in every such case the Trustee or the
Holders of not less than twenty-five percentum (25%) in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Outstanding Securities of such series are Discount Securities, such
portion of the principal amount of such Securities as may be specified in the
terms thereof as contemplated by Section 301) of all of the Outstanding
Securities of such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon such
declaration such principal amount (or specified amount), together with premium,
if any, and accrued interest, if any, thereon, shall become immediately due and
payable. Notwithstanding the foregoing,
if an Event of Default specified in clause (d) or (e) of Section 701
occurs, all Outstanding Securities shall be due and payable immediately without
further notice. Upon any acceleration of
the Securities of any series pursuant to this paragraph, the Trustee
immediately shall file with the trustee(s) under the Mortgage(s) pertaining to
the related First Mortgage Bonds (with a copy to the Company) a written demand
for redemption of the related First Mortgage Bonds.
At any time after such a
declaration of acceleration of the maturity of the Securities then Outstanding
shall have been made, but before a decree or judgment for payment of the money
due shall have been obtained by the Trustee as provided in this Article, the
Holders
49
of a majority in
principal amount of the Securities then Outstanding, by written notice to the
Company and the Trustee may rescind and annul such acceleration and its
consequences, if
(a)
the Company shall have
paid or deposited with the Trustee a sum sufficient to pay
(i)
all
installments of interest, if any, which have become due on all Securities of
such series then Outstanding, together with interest, if any, thereon, at the
rate or rates prescribed therefor in such Securities, to the extent that
payment of such interest is lawful;
(ii)
the
principal of and premium, if any, on any Securities of such series then
Outstanding which have become due otherwise than by such declaration of
acceleration and interest, if any, thereon at the rate or rates prescribed
therefor in such Securities; and
(iii)
all amounts due to the
Trustee under Section 807; and
(b)
all Events of Default
with respect to Securities of such series, other than the non-payment of the
principal of Securities of such series which shall have become due solely by
such declaration of acceleration, shall have been cured or waived as provided
in Section 713.
No such rescission shall
affect any subsequent Event of Default or impair any right consequent thereon.
Upon any rescission of
any acceleration of the Securities of any series pursuant to this Section, the
Trustee immediately shall file with the trustee(s) under the Mortgage(s)
pertaining to the related First Mortgage Bonds, a written notice of such
rescission.
SECTION 703.
Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default
described in clause (a) or (b) of Section 701 shall have occurred and be
continuing, the Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of the Securities with respect to which such Event of
Default shall have occurred, the whole amount then due and payable on such
Securities for principal and premium, if any, and interest, if any, and, to the
extent permitted by law, interest on overdue principal, premium and interest at
the rate or rates prescribed therefore in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover any amounts due to
the Trustee under Section 807.
If the Company shall fail
to pay such amounts forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company
or any other obligor upon such Securities, wherever situated.
50
If an Event of Default
with respect to Securities of any series shall have occurred and be continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of the Outstanding Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 704.
Application of Money Collected.
Any money collected by
the Trustee pursuant to this Article shall be applied in the following
order, to the extent permitted by law, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or premium, if any, or interest, if any, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First:
To the payment of all amounts due the Trustee
under Section 807;
Second:
To the payment of the whole amount then due
and unpaid upon the Outstanding Securities for principal and premium, if any,
and interest, if any, in respect of which or for the benefit of which such
money has been collected; and in case such proceeds shall be insufficient to
pay in full the whole amount so due and unpaid upon such Securities, then to
the payment of such principal and interest, if any, thereon without any
preference or priority, ratably according to the aggregate amount so due and
unpaid, with any balance then remaining to the payment of premium, if any, and,
if so specified as contemplated by Section 301 with respect to the
Securities of any series, or any Tranche thereof, interest, if any, on overdue
premium, if any, and overdue interest, if any, ratably as aforesaid, all to the
extent permitted by applicable law;
Third:
To the payment of the remainder, if any, to
the Company or to whomsoever may be lawfully entitled to receive the same or as
a court of competent jurisdiction may direct.
SECTION 705.
Trustee May File Proofs of Claim.
In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a)
to file and prove a
claim for the whole amount of principal, premium, if any, and interest, if any,
owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for amounts due to the Trustee under Section 807)
and of the Holders allowed in such judicial proceeding, and
(b)
to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute the same;
51
and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amounts due it under Section 807.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, be a member of a creditors’ or other similar committee.
SECTION 706.
Trustee May Enforce Claims without Possession
of Securities.
All rights of action and
claims under this Indenture or on the Securities may be prosecuted and enforced
by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
in respect of which such judgment has been recovered.
No Holder of any Security
of any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a)
such Holder shall have
previously given written notice to the Trustee of a continuing Event of
Default;
(b)
the Holders of
twenty-five percent (25%) in aggregate principal amount of the Outstanding
Securities of all series in respect of which an Event of Default shall have
occurred and is continuing shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c)
such Holder or Holders
shall have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;
(d)
the Trustee for sixty
(60) days after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such proceeding; and
(e)
no direction
inconsistent with such written request shall have been given to the Trustee
during such sixty (60) day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and be continuing, considered as
one class.
52
it being
understood and intended that no one or more of the Holders of any Securities
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all Holders.
SECTION 708.
Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
premium, if any, and (subject to Section 307) interest, if any, on such
Security on the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 709.
Restoration of Rights and Remedies.
If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and such Holder shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 710.
Rights and Remedies Cumulative.
Except as otherwise
provided in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 711.
Delay
or Omission Not Waiver.
No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 712.
Control by Holders of Securities.
If an Event of Default
shall have occurred and be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the Outstanding Securities of such
53
series shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to the Securities of such series; provided, however,
that if an Event of Default shall have occurred and be continuing with respect
to more than one series of Securities, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all such series, considered
as one class, shall have the right to make such direction, and not the Holders
of any one such series; and provided further, that
(a)
such direction shall not
be in conflict with any rule of law or with this Indenture, and could not
involve the Trustee in personal liability in circumstances where indemnity
would not, in the Trustee’s sole discretion, be adequate,
(b)
Trustee shall not
determine that the action so directed would be unjustly prejudicial to the
Holders not taking part in such direction, and
(c)
the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction.
SECTION 713.
Waiver of Past Defaults.
The Holders of a majority
in principal amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Outstanding Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(a)
in the payment of the
principal of or premium, if any, or interest, if any, on any Security of such
series, or
(b)
in respect of a covenant
or provision hereof which under Section 1102 cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver,
such default shall cease to exist, and any and all Events of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
The Company and the
Trustee agree, and each Holder by its acceptance of a Security shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant, all in the manner, to the extent and except as
provided in the Trust Indenture Act; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the
54
aggregate more
than ten percentum (10%) in aggregate principal amount of the Securities then
Outstanding, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 715.
Waiver of Stay or Extension Laws.
To the full extent that
it may lawfully so agree, the Company shall not at any time set up, claim or
otherwise seek to take the benefit or advantage of any stay or extension law,
now or hereafter in effect, in order to prevent or hinder the enforcement of
this Indenture; and the Company, for itself and all who may claim under it, so
far as it or they now or hereafter may lawfully do so, hereby waives the
benefit of all such laws.
SECTION 716.
Defaults under Mortgages.
In addition to every
other right and remedy provided herein, the Trustee may (but shall not be
obligated to) exercise any right or remedy available to the Trustee in its
capacity as owner and holder of First Mortgage Bonds which arises as a result
of a default or matured event of default under any Mortgage, whether or not an
Event of Default shall then have occurred and be continuing.
SECTION 801
.
Certain
Duties and Responsibilities.
(a)
Except during the
continuance of an Event of Default,
(i)
the
Trustee undertakes to perform, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii)
in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates
or opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.
(b)
In case an Event of
Default shall have occurred and be continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
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(c)
No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i)
this
subsection shall not be construed to limit the effect of subsection (a)
of this Section;
(ii)
the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(iii)
the Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities, of any one or more series as
provided herein, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(iv)
no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(d)
Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
The Trustee shall give
the Holders notice of any default hereunder in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default shall have
been cured or waived. For the purpose of
this Section, the term
“default”
means
any event which is, or after notice or lapse of time, or both, would become, an
Event of Default with respect to the Securities of any series. The Trustee shall give to the trustee under
each Mortgage a copy of each notice of default given to the Holders pursuant to
this Section. In addition, the Trustee
shall give to the Holders copies of each notice of default under any Mortgage
given to the Trustee in its capacity as owner and holder of First Mortgage
Bonds delivered thereunder.
SECTION 803.
Certain Rights of Trustee.
Subject to the provisions
of Section 801 and to the applicable provisions of the Trust Indenture
Act:
(a)
the Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other
56
paper or document believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(b)
any request, direction or
act of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, or as otherwise expressly provided herein,
and any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c)
whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence is specifically prescribed
herein) may, in the absence of bad faith on its part, rely upon an Officer’s
Certificate;
(d)
the Trustee may consult
with counsel and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e)
the Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any Holder pursuant to this
Indenture, unless such Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f)
the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall (subject to applicable legal requirements) be entitled
to examine, during normal business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g)
the Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(h)
the Trustee shall have no
duty to inquire as to the performance of the Company with respect to the
covenants contained in Article 5; and the Trustee shall not be charged
with knowledge of any Event of Default with respect to the Securities of any
series, unless (i) a Responsible Officer of the Trustee shall have actual
knowledge of the Default or Event of Default or (ii) the Event of Default has
occurred pursuant to Sections 7.01(a) or 7.01(b) or (iii) written notice of
such Event of Default shall have been given to the Trustee by the Company, any
other obligor on such Securities or by any Holder of such Securities or, in the
case of a default described in Section 701(f), from the holder of any
indebtedness or from the trustee under any mortgage or other instrument
referred to in such Section.
57
SECTION 804.
Not
Responsible for Recitals or Issuance of Securities.
The recitals contained
herein and in the Securities (except the Trustee’s certificates of
authentication) shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Each of the Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to Sections 808 and
813, may otherwise deal with the Company with the same rights it would have if
it were not such Trustee, Authenticating Agent, Paying Agent, Security
Registrar or other agent.
Money held by the Trustee
in trust hereunder need not be segregated from other funds, except to the
extent required by law. The Trustee
shall be under no liability for interest on or investment of any money received
by it hereunder except as expressly provided herein or otherwise agreed with,
and for the sole benefit of, the Company.
SECTION 807.
Compensation and Reimbursement.
The Company shall
(a)
pay to the Trustee from
time to time reasonable compensation as may be agreed with the Company for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b)
except as otherwise
expressly provided herein, reimburse the Trustee upon its request for all
reasonable out-of-pocket expenses, disbursements and advances reasonably
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent that any such
expense, disbursement or advance may be attributable to its negligence, willful
misconduct or bad faith; and
(c)
indemnify the Trustee
and hold it harmless from and against any loss, liability or expense reasonably
incurred by it arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder or the performance of its duties hereunder,
including the reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, willful misconduct or bad faith.
58
As security for the
performance of the obligations of the Company under this Section, the Trustee
shall have a lien prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds held in trust
under Section 603 (except moneys payable to the Company as provided in Section 603).
“Trustee”
for
purposes of this Section shall include any predecessor Trustee; provided,
however, that the negligence, willful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee hereunder.
SECTION 808.
Disqualification; Conflicting Interests.
If the Trustee has or shall
acquire any conflicting interest within the meaning of the Trust Indenture Act,
it shall either eliminate such conflicting interest or resign to the extent, in
the manner and with the effect, and subject to the conditions, provided in the
Trust Indenture Act and this Indenture.
For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its capacity as trustee in
respect of the Securities of any series, shall not be deemed to have a
conflicting interest arising from its capacity as trustee in respect of the
Securities of any other series.
SECTION 809.
Corporate Trustee Required; Eligibility.
There shall at all times
be a Trustee hereunder which shall be
(a)
a corporation organized
and doing business under the laws of the United States, any State or Territory
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least Fifty
Million Dollars ($50,000,000) and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority, or
(b)
if and to the extent
permitted by the Commission by rule, regulation or order upon application, a
corporation or other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least Fifty Million Dollars
($50,000,000) or the Dollar equivalent of the applicable foreign currency and
subject to supervision or examination by authority of such foreign government
or a political subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees,
and, in either
case, qualified and eligible under this Article and the Trust Indenture
Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of such supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section or the Trust Indenture Act, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
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SECTION 810.
Resignation
and Removal; Appointment of Successor.
(a)
No resignation or
removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of Section 811.
(b)
The Trustee may resign at
any time with respect to the Securities of one or more series by giving written
notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 811
shall not have been delivered to the Trustee within thirty (30) days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c)
The Trustee may be
removed at any time with respect to the Securities of one or more series by Act
of the Holders of a majority in principal amount of the Outstanding Securities
of such series delivered to the Trustee and to the Company.
(d)
If at any time:
(i)
the
Trustee shall fail to comply with Section 808 after written request
therefor by the Company or by any Holder who has been a bona fide Holder for at
least six months, or
(ii)
the
Trustee shall cease to be eligible under Section 809 or Section 310(a)
of the Trust Indenture Act and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(iii)
the Trustee shall become
incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such
case, (x) the Company by Board Resolution may remove the Trustee with
respect to all Securities or (y) subject to Section 714, any Holder
who has been a bona fide Holder for at least six (6) months may, on behalf of
itself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all series and the
appointment of a successor Trustee or Trustees.
(e)
If the Trustee shall
resign, be removed or become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause (other than as contemplated in clause
(y) in subsection (d) of this Section), with respect to the Securities of
one or more series the Company, by Board Resolution, shall take prompt steps to
appoint a successor Trustee or Trustees with respect to the Securities of such
series and shall comply with the applicable requirements of Section 811. If, within one (1) year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of one or more series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
60
acceptance of such appointment in accordance with the applicable
requirements of Section 811, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no
successor Trustee with respect to such Securities shall have been so appointed
by the Company or the Holders and accepted appointment in the manner required
by Section 811, any Holder who has been a bona fide Holder of a Security
of such series for at least six (6) months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f)
The Company shall give
notice of each resignation and each removal of the Trustee and each appointment
of a successor Trustee to all Holders of Securities. Each notice shall include the name of the
successor Trustee and the address of its corporate trust office.
SECTION 811.
Acceptance
of Appointment by Successor.
(a)
In case of the
appointment hereunder of a successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of all sums
owed to it, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall assign
and transfer to such successor Trustee all First Mortgage Bonds then held by
the retiring Trustee pursuant to this Indenture in accordance with all
requirements of such First Mortgage Bonds and the related Mortgage(s) and duly
assign, transfer and deliver to such successor Trustee all other property and all
money held by such retiring Trustee hereunder.
(b)
Upon the request of any
such successor Trustee, the Company shall execute instruments to more fully and
certainly vest in and confirm to such successor Trustee all rights, powers and
trusts referred to in subsection (a) of this Section.
(c)
No successor Trustee shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible under this Article.
SECTION 812.
Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating
61
Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 813.
Preferential Collection of Claims against
Company.
If the Trustee shall be
or become a creditor of the Company or any other obligor upon the Securities
(other than by reason of a relationship described in Section 311(b) of the
Trust Indenture Act), the Trustee shall be subject to any and all applicable
provisions of the Trust Indenture Act regarding the collection of claims
against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act: (a) the term
“cash
transaction”
shall have the meaning provided in Rule 11b4 under the
Trust Indenture Act; and (b) the term
“self-liquidating paper”
shall have the meaning provided in Rule 11b6 under the Trust Indenture Act.
SECTION 814
. Appointment of Authenticating Agent.
The Trustee may appoint
an Authenticating Agent or Agents acceptable to the Company with respect to the
Securities of one or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange, registration of transfer
or partial redemption thereof or pursuant to Section 306, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States, any State or Territory thereof or the District of Columbia or the
Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
Fifty Million Dollars ($50,000,000) and subject to supervision or examination
by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into
which an Authenticating Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to all or substantially all of the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
62
An Authenticating Agent
may resign at any time by giving written notice thereof to the Trustee and to
the Company. The Trustee may (and, upon
the request of the Company, shall) at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company.
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation as
agreed with the Company for its services under this Section.
The provisions of
Sections 308, 804 and 805 shall be applicable to each Authenticating Agent.
If an appointment with
respect to the Securities of one or more series, or any Tranche thereof, shall
be made pursuant to this Section, the Securities of such series or Tranche may
have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the
Securities of the series designated therein referred to in the within-mentioned
Indenture.
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If all of the Securities
of a series may not be originally issued at one time, and if the Trustee does
not have an office capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the Trustee, if so requested
by the Company in writing (which writing need not comply with Section 102
and need not be accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such procedures as
shall be acceptable to the Trustee, an Authenticating Agent having an office in
a Place of Payment designated by the Company with respect to such series of
Securities.
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SECTION 815.
Co-trustee and Separate Trustees.
At any time or times, for
the purpose of meeting the legal requirements of any applicable jurisdiction,
the Company and the Trustee shall have power to appoint, and, upon the written
request of the Trustee or of the Holders of at least 25% in principal amount of
the Outstanding Securities, the Company shall for such purpose join with the
Trustee in the execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Trustee
either to act as co-trustee, jointly with the Trustee, or to act as separate
trustee, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such Person or Persons, in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company does not join in such
appointment within 15 days after the receipt by it of a request so to do, or if
an Event of Default shall have occurred and be continuing, the Trustee alone
shall have power to make such appointment.
Should any written
instrument or instruments from the Company be required by any co-trustee or
separate trustee to more fully confirm to such co-trustee or separate trustee
such property, title, right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Company.
Every co-trustee or
separate trustee shall, to the extent permitted by law, but to such extent
only, be appointed subject to the following conditions:
(a)
the Securities shall be
authenticated and delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the Trustee
hereunder, shall be exercised solely, by the Trustee;
(b)
the rights, powers,
duties and obligations hereby conferred or imposed upon the Trustee in respect
of any property covered by such appointment shall be conferred or imposed upon
and exercised or performed either by the Trustee or by the Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that under
any law of any jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c)
the Trustee at any time,
by an instrument in writing executed by it, with the concurrence of the
Company, may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, if an Event of Default shall have
occurred and be continuing, the Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the
written request of the Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements necessary or proper to
effectuate such resignation or removal.
A successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section;
64
(d)
no co-trustee or separate
trustee hereunder shall be personally liable by reason of any act or omission
of the Trustee, or any other such trustee hereunder, and the Trustee shall not
be personally liable by reason of any act or omission of any such co-trustee or
separate trustee; and
(e)
any Act of Holders
delivered to the Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Semiannually, not later
than June 30 and December 31 in each year, commencing June 30,
2005, and within 30 days of such other times as the Trustee may request in
writing, the Company shall furnish or cause to be furnished to the Trustee
information as to the names and addresses of the Holders, as of a date no more
than fifteen (15) days prior to the date such information is so furnished, and
the Trustee shall preserve such information and similar information received by
it in any other capacity and afford to the Holders access to information so
preserved by it, all to such extent, if any, and in such manner as shall be
required by the Trust Indenture Act; provided, however, that no such list need
be furnished so long as the Trustee shall be the Security Registrar.
SECTION 902.
Reports by Trustee and Company.
Not later than June 30
in each year, commencing June 30, 2005, the Trustee shall transmit to the
Holders, the Commission and each securities exchange upon which any Securities
are listed, a report, dated as of the next preceding September 15, with
respect to any events and other matters described in Section 313(a) of the
Trust Indenture Act, in such manner and to the extent required by the Trust
Indenture Act. The Trustee shall
transmit to the Holders, the Commission and each securities exchange upon which
any Securities are listed, and the Company shall file with the Trustee (within
thirty (30) days after filing with the Commission in the case of reports which
pursuant to the Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such manner, as shall
be required by the Trust Indenture Act.
The Company shall notify the Trustee of the listing of any Securities on
any securities exchange.
SECTION 1001
. Company may Consolidate, etc., Only on
Certain Terms.
The Company shall not
consolidate with or merge into any other Person, or convey or otherwise
transfer, or lease, the properties of the Company and its Restricted
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Subsidiaries,
taken as a whole, as or substantially as an entirety, to any Person, in one or
more related transactions, unless:
(a)
the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by conveyance or other transfer, or which leases, the properties of
the Company and its Restricted Subsidiaries, taken as a whole, as or
substantially as an entirety, shall be (i) a corporation organized or existing
under the laws of the United States, any State or Territory thereof or the
District of Columbia or (ii) a partnership or limited liability company
organized or existing under the laws of the United States, any State or
Territory thereof or the District of Columbia, in either case, that has at
least one Restricted Subsidiary that is a corporation organized or existing
under the laws of the United States, any State or Territory thereof or the
District of Columbia, which corporation becomes a co-issuer of the Securities
pursuant to a supplemental indenture in form reasonably satisfactory to the
trustee (such corporation and/or partnership, or limited liability company
being hereinafter sometimes called the
“Successor”
);
and in the case of either (i) or (ii), above, such Successor shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and premium, if any, and interest, if any, on all
the Securities then Outstanding and the performance and observance of every
covenant and condition of this Indenture to be performed or observed by the
Company;
(b)
immediately before and
after giving effect to such transaction or, series of related transactions, no
Default or Event of Default shall have occurred and be continuing; and
(c)
the Company shall have
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each of which shall state that such consolidation, merger, conveyance or other
transfer or lease, and such supplemental indenture, comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
Upon any consolidation or
merger or any conveyance or other transfer of all the properties of the Company
and its Restricted Subsidiaries, taken as a whole, as or substantially as an
entirety, in accordance with Section 1001, the Successor shall succeed to,
and be substituted for, and may exercise every power and right of, the Company
under this Indenture with the same effect as if such Successor had been named
as the “Company” herein and, in the event of any such conveyance or transfer,
the Company (which term shall for this purpose means the Person named as the “Company”
in the first paragraph of this Indenture or any successor Person which shall
theretofore become such in the manner described in Section 1001), except
in the case of a lease, shall be discharged of all obligations and covenants
under this Indenture and the Securities and may be dissolved and
liquidated. Without limiting the
generality of the foregoing, the Successor may execute and deliver to the
Trustee, and thereupon the Trustee shall, subject to the provisions of Article Three,
authenticate and deliver, Securities.
All Securities so executed by the Successor, and authenticated and
delivered by the Trustee, shall in all respects be entitled to the benefits
provided by this Indenture equally and ratably with all Securities executed,
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authenticated and
delivered prior to the time such consolidation, merger, conveyance or other
transfer became effective.
Nothing in this Indenture
shall be deemed to prevent or restrict (a) any consolidation or merger after
the consummation of which the Company would be the surviving or resulting
entity, or (b) any conveyance or other transfer, or lease of any part of the
properties of the Company which does not constitute the entirety, or
substantially the entirety, thereof, or (c) any conveyance or other transfer or
lease of properties of any Restricted Subsidiaries to the Company.
SECTION 1101
. Supplemental Indentures without Consent of
Holders.
Without the consent of
any Holders, the Company and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(a)
to evidence the
succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities, all as
provided in Article Ten, including in the case of a merger or
consolidation or sale of all or substantially all of the Company’s assets; or
(b)
to add one or more
covenants of the Company or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in effect only so long as there
shall be Outstanding, Securities of one or more specified series, or one or
more specified Tranches thereof, or to surrender any right or power herein
conferred upon the Company; or
(c)
to add any additional
Event of Default with respect to all or any series of Outstanding Securities
hereunder; or
(d)
to change or eliminate
any provision of this Indenture or to add any new provision to this Indenture;
provided, however, that if such change, elimination or addition shall adversely
affect the interests of the Holders of Securities of any series or Tranche in
any material respect, such change, elimination or addition shall become
effective with respect to such series or Tranche only pursuant to the
provisions of Section 1102 hereof or when no Security of such series or
Tranche remains Outstanding; or
(e)
to provide guarantees or
additional collateral security for all but not part of the Securities; or
(f)
to establish the form
or terms of Securities of any series or Tranche as contemplated by Sections 201
and 301; or
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(g)
to provide for the
authentication and delivery of bearer securities and coupons appertaining
thereto representing interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving of notice to,
and the solicitation of the vote or consent of, the holders thereof, and for
any and all other matters incidental thereto; or
(h)
to evidence and provide
for the acceptance of appointment hereunder by a successor Trustee or by a
co-trustee or separate trustee with respect to the Securities of one or more
series and to add or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of the
Indenture; or
(i)
to provide for the
procedures required to permit the Company to utilize, at its option, a
non-certificated system of registration for all, or any series or Tranche of,
the Securities; or
(j)
to change any place
or places where (1) the principal of and premium, if any, and interest, if any,
on all or any series of Securities, or any Tranche thereof, shall be payable,
(2) all or any series of Securities, or any Tranche thereof, may be surrendered
for registration of transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4) notices and demands to
or upon the Company in respect of all or any series of Securities, or any
Tranche thereof, and this Indenture may be served; or
(k)
to cure any ambiguity,
to correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein; or to make any other changes to
the provisions hereof or to add other provisions with respect to matters or
questions arising under this Indenture, provided that such other changes or
additions shall not adversely affect the interests of the Holders of Securities
of any series or Tranche in any material respect; or
(l)
to modify, eliminate
or add to the provisions of this Indenture to such extent as shall be necessary
to effect the qualification of this Indenture under the Trust Indenture Act and
to add to the Indenture such other provisions as may be expressly required
under the Trust Indenture Act.
SECTION 1102
. Supplemental Indentures with Consent of
Holders.
Subject to the provisions
of Section 1101, with the consent of the Holders of a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing or amending in any manner or eliminating any of the
provisions of, this Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class,
68
shall be required;
and provided, further, that if the Securities of any series shall have been
issued in more than one Tranche and if the proposed supplemental indenture
shall directly affect the rights of the Holders of Securities of one or more,
but less than all, of such Tranches, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
Tranches so directly affected, considered as one class, shall be required; and
provided, further, that no such supplemental indenture shall:
(a)
change the Stated
Maturity of the principal of, or any installment of principal of or interest
on, any Security other than pursuant to the terms thereof, or reduce the
principal amount thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of calculating such rate
or reduce any premium payable thereon, or reduce the amount of the principal of
any Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 702, or change
the coin or currency (or other property), in which any Security or premium, if
any, or interest, if any, thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Maturity of any
Security, without, in any such case, the consent of the Holder of such
Security; or
(b)
permit the creation of
any Lien ranking prior to the Lien of this Indenture with respect to any First
Mortgage Bond delivered to and held by the Trustee pursuant to Article Three,
or (except in accordance with the provisions of this Indenture) terminate the
Lien of this Indenture on any such First Mortgage Bond or amend or waive the
provisions of Section 315 or 316 as applicable to any First Mortgage Bond,
without, in any such case, the consent of the Holders of all Securities of the
related series then Outstanding; or
(c)
reduce the percentage in
principal amount of the Outstanding Securities of any series, or any Tranche
thereof, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required for
any waiver of compliance with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section 1204
for quorum or voting, without, in any such case, the consent of the Holder of
each Outstanding Security of such series or Tranche; or
(d)
modify any of the
provisions of this Section, Section 317, Section 508 or Section 713
with respect to the Securities of any series or any Tranche thereof (except to
increase the percentages in principal amount referred to in this Section or
such other Sections or to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the Holders of all
Securities of such series or Tranche) without, in any such case, the consent of
the Holder of each Outstanding Security of such series or Tranche; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to “the Trustee” and
concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 811(b) and 1101(g).
A supplemental indenture
which (x) changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of the
Holders of, or which is to remain in effect only so long as there shall be
Outstanding, Securities
69
of one or more
specified series, or one or more Tranches thereof, or (y) modifies the rights
of the Holders of Securities of such series or Tranches with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series or Tranche.
If the supplemental
indenture, Board Resolution or Officer’s Certificate establishing any series of
Securities, or Tranche thereof, so provides, the Holders of such Securities
shall be deemed to have consented, by virtue of their acceptance of such
Securities, to a supplemental indenture containing the additions, changes or
eliminations to or from the Indenture which are specified in such supplemental
indenture, Board Resolution or Officer’s Certificate. No Act of such Holders will be required to
evidence such consent and such consent may be counted in the determination of
whether the Holders of the requisite principal amount of Outstanding Securities
have consented to such supplemental indenture.
It shall not be necessary
for any Act of Holders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
SECTION 1103.
Execution of Supplemental Indentures.
In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 801) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 1104.
Effect of Supplemental Indentures.
Upon the execution and
delivery of any supplemental indenture under this Article this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental
indenture permitted by this Article may restate this Indenture in its
entirety, and, upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all purposes.
SECTION 1105.
Conformity
with Trust Indenture Act.
Every supplemental
indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 1106
. Reference in Securities to Supplemental
Indentures.
Securities of any series,
or any Tranche thereof, authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in
70
such supplemental
indenture. If the Company shall so
determine, new Securities of any series, or any Tranche thereof, so modified as
to conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series
or Tranche.
SECTION 1107.
Modification without Supplemental Indenture.
To the extent, if any,
that the terms of any particular series of Securities shall have been
established in an Officer’s Certificate or a Board Resolution as contemplated
by Section 301, and not in a supplemental indenture, additions to, changes
in or the elimination of any of such terms may be effected by means of a
supplemental Officer’s Certificate or a supplemental Board Resolution, as the
case may be, delivered to, and accepted by, the Trustee; provided, however,
that such supplemental Officer’s Certificate or supplemental Board Resolution
shall not be accepted by the Trustee or otherwise be effective unless all
conditions set forth in this Indenture which would be required to be satisfied
if such additions, changes or elimination were contained in a supplemental indenture
shall have been appropriately satisfied.
Upon the acceptance thereof by the Trustee, any such supplemental
Officer’s Certificate or supplemental Board Resolution shall be deemed to be a “supplemental
indenture” for purposes of Section 1104 and 1106.
SECTION 1201
. Purposes for Which Meetings May Be Called.
A meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
may be called at any time and from time to time pursuant to this Article to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series or Tranches.
SECTION 1202
. Call,
Notice and Place of Meetings.
(a)
The Trustee may at any
time call a meeting of Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, for any purpose specified in Section 1201,
to be held at such time and (except as provided in subsection (b) of this
Section) at such place in the Borough of Manhattan, The City of New York, as
the Trustee shall determine, or, with the approval of the Company, at any other
place. Notice of every such meeting, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106, not less than twenty-one (21) nor more than one hundred
eighty (180) days prior to the date fixed for the meeting.
(b)
The Trustee may be asked
to call a meeting of the Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, by the Company or by the Holders of
thirty-three percentum (33%) in aggregate principal amount of all of such
series
71
and Tranches, considered as one class, for any purpose specified in Section 1201,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting. If the Trustee
shall have been asked by the Company to call such a meeting, the Company shall
determine the time and place for such meeting and may call such meeting by
giving notice thereof in the manner provided in subsection (a) of this
Section, or shall direct the Trustee, in the name and at the expense of the
Company, to give such notice. If the
Trustee shall have been asked to call such a meeting by Holders in accordance
with this subsection (b), and the Trustee shall not have given the notice
of such meeting within twenty-one (21) days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Holders of Securities of such series and Tranches, in the
principal amount above specified, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in such other place as shall be
determined or approved by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (a)
of this Section.
(c)
Any meeting of Holders
of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, shall be valid without notice if the Holders of all Outstanding
Securities of such series or Tranches are present in person or by proxy and if
representatives of the Company and the Trustee are present, or if notice is
waived in writing before or after the meeting by the Holders of all Outstanding
Securities of such series, or any Tranche or Tranches thereof, or by such of
them as are not present at the meeting in person or by proxy, and by the
Company and the Trustee.
SECTION 1203
. Persons Entitled to Vote at Meetings.
To be entitled to vote at
any meeting of Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series or Tranches by such Holder or
Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any series or
Tranche shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
The Persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities of
the series and Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall constitute a quorum
for a meeting of Holders of Securities of such series and Tranches; provided,
however, that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified percentage, which
is less than a majority, in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, shall constitute a
quorum. In the absence of a quorum
within one hour of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series and
Tranches, be dissolved. In any other
case the
72
meeting may be
adjourned for such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting.
In the absence of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such adjourned
meeting. Except as provided by Section 1205(e),
notice of the reconvening of any meeting adjourned for more than thirty (30)
days shall be given as provided in Section 106 not less than ten (10) days
prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series and Tranches
which shall constitute a quorum.
Except as limited by Section 1102,
any resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the affirmative
vote of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of the series and Tranches with respect to which such
meeting shall have been called, considered as one class; provided, however,
that, except as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as one class,
may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class.
Any resolution passed or
decision taken at any meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have been held,
whether or not present or represented at the meeting.
SECTION 1205
. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment of Meetings.
(a)
Attendance at meetings
of Holders of Securities may be in person or by proxy; and, to the extent
permitted by law, any such proxy shall remain in effect and be binding upon any
future Holder of the Securities with respect to which it was given unless and
until specifically revoked by the Holder or future Holder (except as provided
in Section 104(g)) of such Securities before being voted.
(b)
Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of Securities in regard to
proof of the holding of such Securities and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise
permitted or required by any such regulations and approved by the Company, the
holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in Section 104. Such regulations may provide that written
instruments appointing proxies, regular on their face,
73
may be presumed valid and genuine without the proof specified in Section 104
or other proof.
(c)
The Trustee shall, by an
instrument in writing, appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders as provided in Section 1202(b),
in which case the Company or the Holders of Securities of the series and
Tranches calling the meeting, as the case may be, shall in like manner appoint
a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the meeting,
considered as one class.
(d)
At any meeting each
Holder or proxy shall be entitled to one vote for each One Thousand Dollars
($1,000) principal amount of Outstanding Securities held or represented by such
Holder; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a
Holder of a Security or proxy.
(e)
Any meeting duly called
pursuant to Section 1202 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches represented at
the meeting, considered as one class; and the meeting may be held as so
adjourned without further notice.
SECTION 1206
. Counting Votes and Recording Action of
Meetings.
The vote upon any
resolution submitted to any meeting of Holders shall be by written ballots on
which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities, of the series and Tranches with respect to which the
meeting shall have been called, held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that such notice was given as provided in Section 1202
and, if applicable, Section 1204.
Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company, and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
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SECTION 1207
. Action without Meeting.
In lieu of a vote of
Holders at a meeting as hereinbefore contemplated in this Article, any request,
demand, authorization, direction, notice, consent, waiver or other action may
be made, given or taken by Holders by written instruments as provided in Section 104.
Immunity of
Incorporators, Stockholders, Officers and Directors
SECTION 1301
. Liability Solely Corporate.
No recourse shall be had
for the payment of the principal of or premium, if any, or interest, if any, on
any Securities, or any part thereof, or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement under this Indenture, against any
incorporator, stockholder, officer, director or employee, as such, past,
present or future, of the Company or of any predecessor or successor
corporation (either directly or through the Company or a predecessor or
successor corporation), whether by virtue of any constitutional provision,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and all
the Securities are solely corporate obligations and that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
officer, director or employee, past, present or future, of the Company or of
any predecessor or successor corporation, either directly or indirectly through
the Company or any predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or to be implied herefrom or therefrom; and such personal liability, if any, is
hereby expressly waived and released as a condition of, and as part of the consideration
for, the execution and delivery of this Indenture and the issuance of the
Securities.
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IN WITNESS WHEREOF
,
the parties hereto have caused this Indenture to be duly executed as of the day
and year first above written.
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NORTHWESTERN
CORPORATION
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By:
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/s/ Brian B.
Bird
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Name: Brian B. Bird
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Title: Vice President and Chief Financial Officer
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U.S. BANK
NATIONAL ASSOCIATION, Trustee
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By:
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/s/ Lori-Anne
Rosenberg
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Name: Lori-Anne Rosenberg
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Title: Assistant Vice President
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Exhibit
4.2
NORTHWESTERN CORPORATION
TO
U.S. Bank National
Association,
Trustee
Supplemental Indenture No. 1
dated as of November 1, 2004
Supplemental to the Indenture
dated as of November 1, 2004
Establishing a series of Securities designated
Senior Secured Notes, 5.875% Series A due 2014
limited in aggregate principal amount to $225,000,000
and
a series of Securities designated
Senior Secured Notes, 5.875% Exchange Series A due 2014
limited in aggregate principal amount to $225,000,000
SUPPLEMENTAL INDENTURE
NO. 1
SUPPLEMENTAL INDENTURE NO.
1,
dated as of the 1
st
day of November, 2004, made and entered
into by and between NORTHWESTERN CORPORATION, a corporation organized and
existing under the laws of the State of Delaware, whose address is 125 S.
Dakota Avenue, Sioux Falls, South Dakota
57104 (hereinafter sometimes called the “Company”), and U.S. BANK
NATIONAL ASSOCIATION, a national banking organization, whose address is 60
Livingston Avenue, St. Paul, MN 55107 (hereinafter
sometimes called the “Trustee”), as Trustee under the Indenture, dated as of November 1,
2004 (hereinafter called the “Original Indenture”), this Supplemental Indenture
No. 1 being supplemental thereto. The
Original Indenture and any and all indentures and instruments supplemental
thereto are hereinafter sometimes collectively called the “Indenture.”
Recitals of the
Company
The Original Indenture was
authorized, executed and delivered by the Company to provide for the issuance
from time to time of its Securities (such term and all other capitalized terms
used herein without definition having the meanings assigned to them in the
Original Indenture), to be issued in one or more series as contemplated
therein, and to provide security for the payment of the principal of and
premium, if any, and interest, if any, on the Securities.
As contemplated in Sections
301 and 1101(f) of the Original Indenture, the Company wishes to establish a
series of Securities to be designated “Senior Secured Notes, 5.875% Series A
due 2014 and to be limited in aggregate principal amount (except as
contemplated in Section 301(b) of the Original Indenture) to $225,000,000,
such series of Securities to be hereinafter sometimes called “Series No. 1.”
The Company has agreed to
offer and sell the securities of Series No. 1 to certain initial purchasers in
a private placement pursuant to Section 4(2) of the Securities Act, and the
Company and such initial purchasers of the Securities of Series No. 1 are
entering into a Registration Rights Agreement dated as of November 1, 2004
(the “Registration Rights Agreement”) which requires, upon the terms and
conditions provided therein, the Company to use its commercially reasonable
efforts to make a Registered Exchange Offer (as defined in the Registration
Rights Agreement) which would enable Holders of Securities of Series No. 1 to
exchange such Securities or cause a Shelf Registration Statement (as defined in
the Registration Rights Agreement) to become effective with respect to the
Securities of Series No. 1;
In connection with a
Registered Exchange Offer and as contemplated by Sections 301 and 1101(f) of
the Original Indenture, the Company wishes to establish a series of Securities
to be designated “Senior Secured Notes, 5.875% Exchange Series A due 2014” to
be limited in aggregate principal amount (except as contemplated in Section 301(b)
of the Original Indenture) to $225,000,000, such series of Securities to be
hereinafter sometimes called “Series No. 2.”
The Company has duly
authorized the execution and delivery of this Supplemental Indenture No. 1 to
establish the Securities of Series No. 1 and Series No. 2 and has duly
authorized the issuance of such Securities; and all acts necessary to make this
Supplemental Indenture No. 1 a valid agreement of the Company and to make the
Securities of Series No. 1 and Series No. 2 valid obligations of the Company
have been performed.
2
NOW, THEREFORE, THIS
SUPPLEMENTAL INDENTURE NO. 1 WITNESSETH
, that, for and in
consideration of the premises and of the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of the Holders of the Securities of Series No. 1 and
Series No. 2 as follows:
ARTICLE ONE
First Series of
Securities
SECTION 1.
There is hereby created under the Indenture a series of
Securities designated “Senior Secured Notes, 5.875% Series A due 2014” and
limited in aggregate principal amount (except as contemplated in Section 301(b)
of the Original Indenture) to $225,000,000.
The forms and terms of the Securities of Series No. 1, including terms
relating to restrictions on transfer, and forms of appropriate transfer
certificates (“Transfer Certificates”) in connection therewith shall be as
provided in Article 4, Section 9 of this Supplemental Indenture. The Trustee shall authenticate and issue new
Securities of Series No. 1 upon a registration of transfer only upon receipt of
an appropriate Transfer Certificate in the form as provided in Exhibit B. The Trustee shall refuse to register any
transfer of Securities of Series No. 1 without appropriate completion of the
appropriate Transfer Certificate on such Security. The Securities of Series No. 1 and the
Security of Series No. 2 shall be considered as a single series and class for
purposes of any Acts of Holders under the Indenture and for purposes of Section 312(e)
of the Original Indenture.
SECTION 2.
As provided in and pursuant to Article Three of the
Original Indenture, the Securities of Series No. 1 and, upon any exchange
contemplated in Article Two, the Securities of Series No. 2, will be
secured as to payments of principal, interest and premium, if any, by series of
First Mortgage Bonds in aggregate principal amount equal to the aggregate
principal amount of the Securities of Series No. 1, consisting of: (a) a series of First Mortgage Bonds issued
under and secured by the Montana Mortgage (the “Montana First Mortgage Bonds”),
in the original aggregate principal amount of $161,000,000 and designated First
Mortgage Bonds, Collateral (2004) Series C, due 2014 and (b) a series of First
Mortgage Bonds issued under and secured by the South Dakota Mortgage, in the
original aggregate principal amount of $64,000,000 and designated First
Mortgage Bonds, Collateral (2004) Series C, due 2014 (the “South Dakota First
Mortgage Bonds”). The Montana First
Mortgage Bonds and the South Dakota First Mortgage Bonds (collectively, the “First
Mortgage Bonds,” or the “related First Mortgage Bonds”) of the Company are to
be issued concurrently with the issuance of the Securities, and delivered and
pledged by the Company to the Trustee for the benefit of the Holders of the
Securities of Series No. 1 and, upon any exchange contemplated in Article Two
below, Series No. 2, to the Trustee under this Supplemental Indenture.
ARTICLE TWO
Exchange Securities
SECTION 1.
There is hereby created under the Indenture a series of
Securities designated “Senior Secured Notes, 5.875% Exchange Series A due 2014”
and limited in aggregate principal amount (except as contemplated in Section 301(b)
of the Original Indenture) to $225,000,000.
The forms and terms of the Securities of the Series No. 2 shall be as
provided in Article 4, Section 9 of this Supplemental Indenture. The Securities of Series No. 2 are to be
offered to the holders of the Securities of Series No. 1 in exchange for
Securities of Series No. 1. To the
extent that such offer is accepted and Securities of Series No. 1 shall be
surrendered for
3
such exchange, Securities
of Series No. 2 shall be authenticated and delivered by the Trustee and shall
be issued and delivered to such holders in exchange for Securities of Series
No. 1 of like principal amount so surrendered.
The Securities of Series No. 1 and Series No. 2 shall be considered as a
single series and class for purposes of any Holders under the Indenture and for
purposes of Section 312(e) of the Original Indenture.
As contemplated in Article One,
the Securities of Series No. 1 are to be authenticated and delivered upon the
basis of an equal aggregate principal amount of the Company’s First Mortgage
Bonds so described in Article One, authenticated and delivered under the
Company’s Mortgages. As contemplated by Section 315
of the Original Indenture, the Trustee is to retain such First Mortgage Bonds
and, accordingly, no additional First Mortgage Bonds are required to be
delivered to the Trustee under Section 312 of the Original Indenture in
connection with the authentication and delivery of the Securities of Series No.
2.
The sum (the “Sum”) of (a)
the aggregate principal amount of Securities of Series No. 1 Outstanding at any
time and (b) the aggregate principal amount of Securities of Series No. 2 Outstanding
at such time shall be limited to $225,000,000, except as contemplated in clause
(b) of the second paragraph of Section 301 of the Original Indenture. Notwithstanding anything contained in the
Original Indenture or this Supplemental Indenture, the Company shall not issue
any Securities of Series No. 2 if the Sum of the aggregate principal amount of
Securities of Series No. 1 and Series No. 2 would exceed the aggregate
principal amount of related First Mortgage Bonds securing such series as described
herein.
SECTION 2.
Private Exchange Securities.
Pursuant to the
Registration Rights Agreement, if any Initial Purchaser (as such term is
defined in the Registration Rights Agreement) holds, upon consummation of the
Registered Exchange Offer (as defined in the Registration Rights Agreement),
Securities of Series No. 1 acquired by it as part of its initial distribution,
the Company shall issue to such Initial Purchaser Securities of Series No. 2 in
a private exchange (the “Private Exchange Securities”) simultaneously with the
delivery of all other Securities of Series No. 2 pursuant to such Registered
Exchange Offer. Such Private Exchange
Securities shall be identical in all material respects to all other Securities
of Series No. 2, except such Private Exchange Securities shall include
restrictions on transfer under the Securities Act and the securities laws of
the several states of the United States, as set forth in the Registration
Rights Agreement.
ARTICLE THREE
Trustee to Hold First
Mortgage Bonds; Applicable Basis; Additional Trustee Responsibilities
SECTION 1.
Trustee to Hold First Mortgage Bonds.
So long as
any Securities of Series No. 1 or Series No. 2 remain Outstanding, the Trustee
shall hold in the State of New York all First Mortgage Bonds delivered to and
to be held by it pursuant to Article Three of the Original Indenture;
provided that the Trustee may hold such First Mortgage Bonds at its corporate
trust office in Milwaukee, Wisconsin or in another jurisdiction if it receives
an Opinion of Counsel to the effect that the perfection and priority of the
security interest, if any, created by the penultimate sentence of Section 313
of the Original Indenture will continue in such other jurisdiction and notifies
the Company of such change in jurisdiction.
SECTION 2.
Applicable Basis.
As
contemplated by Section 314(a) of the Original Indenture, the “Applicable
Basis” with respect to the First Mortgage Bonds (and upon which (i)
4
portions of principal of,
premium (if any) and interest on the Securities of Series No. 1 and/or Series
No. 2 that are payable under, and secured by, the Montana First Mortgage Bonds
and the South Dakota First Mortgage Bonds, respectively, shall be determined,
(ii) the portions of payments of principal of, premium (if any) and interest on
the Securities of Series No. 1 and/or Series No. 2 shall be credited against
corresponding payments of principal of, premium (if any) and interest on the
Montana First Mortgage Bonds and the South Dakota First Mortgage Bonds,
respectively, and (iii) the respective principal amounts of the Montana First
Mortgage Bonds and the South Dakota First Mortgage Bonds to be deemed paid and
satisfied and to be surrendered upon, and by reason of, all or a portion of the
Securities of Series No. 1 and/or Series No. 2 ceasing to be Outstanding) shall
be (a) calculated (I) in the case of the Montana First Mortgage Bonds, as the “Senior
Notes Applicable Share” as defined in the Montana First Mortgage Bonds, and
(II) in the case of the South Dakota First Mortgage Bonds, as the “Senior Notes
Applicable Share” as defined in the South Dakota First Mortgage Bonds (in the
respective cases, of the aggregate amount of the payment to be apportioned or
credited or of the aggregate principal amount that ceases to be Outstanding)
and, as a consequence, each apportionment, credit, deemed payment and
satisfaction, surrender or other act or thing which, in accordance with the
Original Indenture, is to be done on the Applicable Basis shall be done
pro rata
in the proportion that the principal amount of the
First Mortgage Bonds then Outstanding under each Mortgage bears to the
principal amount of the First Mortgage Bonds then Outstanding under both
Mortgages.
SECTION 3.
Certain Notices.
The Trustee
shall give notices of changes in the “Senior Notes Applicable Share” as defined
in the Montana Mortgage Bonds and the “Senior Notes Applicable Share” as
defined in the South Dakota First Mortgage Bonds to the trustees under the related
Mortgages at the times and in the manner provided in such First Mortgage Bonds
(and, in calculating the same, shall ensure that, after giving effect to the
rounding provided for in the First Mortgage Bonds, the sum of the Senior Notes
Applicable Share as defined in the Montana First Mortgage Bonds and the Senior
Notes Applicable Share as defined in the South Dakota First Mortgage Bonds is
one-hundred percent (100%)).
SECTION 4.
Additional Termination Provisions.
The Trustee
shall not surrender First Mortgage Bonds or terminate the lien of the Indenture
on the First Mortgage Bonds, except in accordance with Section 315 of the
Original Indenture.
ARTICLE FOUR
Additional Provisions
of the Securities
SECTION 1.
Mandatory Redemption.
The
Securities of Series No. 1 or Series No. 2 shall not be subject to any sinking
fund or other mandatory redemption provision.
SECTION 2.
Optional Redemption.
(A)
Optional Redemption
.
Except as provided in Section 2(B), below, the Securities of Series
No. 1 and Series No. 2 will not be redeemable at the Company’s option prior to November 1,
2009. On and after November 1,
2009, the Company may redeem all or a part of the Securities of Series No. 1 or
Series No. 2 upon not less than 30 nor more than 60 days’ notice, at the
Redemption Prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest if any, on the Securities of Series No.
1 or Series No. 2 redeemed, to the applicable Redemption Date, if redeemed
during the twelve-month period beginning on November 1 of the years
indicated below:
5
|
Year
|
|
Percentage
|
|
|
2009
|
|
102.938
|
%
|
|
2010
|
|
101.958
|
%
|
|
2011
|
|
100.979
|
%
|
|
2012
and thereafter
|
|
100.000
|
%
|
(B)
Equity Claw-Back
.
At any time prior to November 1, 2007, the Company may, on any one
or more occasions, redeem, in whole or in part, up to 35% of the aggregate
principal amount of the Securities of Series No. 1 and/or Series
No. 2 at a Redemption Price of 105.875% of the principal amount of the
Securities of Series No. 1 or Series No. 2 redeemed, plus accrued and
unpaid interest, if any, on such Securities redeemed to the Redemption Date,
with the net cash proceeds of any public or private offering of the Company’s
Equity Interests (other than Disqualified Stock) or as a capital contribution
from one or more Equity Offerings;
provided
that:
(1)
at least 65% of the aggregate principal
amount of Securities of Series No. 1 and/or Series No. 2 issued under
the Indenture remains outstanding immediately after the occurrence of each such
redemption (excluding Securities of Series No. 1 held by the Company and
its Subsidiaries); and
(2)
The redemption shall occur within 60 days
of the date of closing of such of Equity Offering.
(C)
Notice of Redemption
.
Notices of redemption in accordance with Section 404 of the
Original Indenture shall be mailed by first class mail at least 30 but not more
than 60 days before the Redemption Date to each Holder of Securities of Series
No. 1 or Series No. 2 to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a Redemption Date
if the notice is issued in connection with a defeasance of such Securities or a
satisfaction and discharge of such Securities under the Indenture. Notwithstanding the penultimate paragraph of Section 404
of the Original Indenture, notices of redemption with respect to the Securities
may not be conditional.
(D)
Selection of Securities of Series No. 1
or Series No. 2 to be Redeemed
. No Securities
of Series No. 1 or Series No. 2 of $1,000 principal amount or less can be
redeemed in part. In accordance with Section 403
of the Indenture, the following method is provided for the selection of
Securities of Series No. 1 or Series No. 2 to be redeemed and these procedures
shall be followed by the Security Registrar in the event of a redemption of less
than all of such Securities pursuant to the provisions of this Supplemental
Indenture. If less than all of the Securities
are to be redeemed at any time, the Security Registrar shall select such
Securities for redemption as follows:
(1)
If the Securities of Series No. 1 or
Series No. 2 are listed on any national securities exchange, in compliance with
the requirements of the principal national securities exchange on which such
Securities are listed; or
(2)
If the Securities of Series No. 1 or
Series No. 2 are not listed on any national securities exchange, on a pro rata
basis, by lot or by such method as the Trustee deems fair and appropriate.
6
SECTION 3.
Offer to Purchase Upon Change of Control.
(A)
Upon the occurrence of a Change of
Control, each Holder of Securities of Series No. 1 and Series No. 2 shall have
the right to require the Company to repurchase all or any part (equal to $1,000
or an integral multiple of $1,000) of that Holder’s Securities of Series No. 1
or Series No. 2 pursuant to the offer described below (the “Change of Control
Offer”) on the terms set forth in this Section 3. In the Change of Control
Offer, the Company shall offer an amount in cash (the “Change of Control
Payment”) equal to 101% of the aggregate principal amount of such Securities of
Series No. 1 or Series No. 2 repurchased plus accrued and unpaid interest, if
any, on such Securities repurchased, to the Change of Control Payment Date (as
defined below).
(B)
Within twenty (20) days following any
Change of Control, the Company shall send, by first class mail a notice to each
Holder of such Securities, with a copy to the Trustee, stating:
(1)
the description of the transaction or
transactions that constitute the Change of Control, that the Change of Control
Offer is being made pursuant to this Section 3, and that all such
Securities validly tendered and not withdrawn shall be accepted for payment;
(2)
the purchase price and the purchase date,
which shall be no earlier than 30 days and no later than 60 days from the date
such notice is mailed (the “Change of Control Payment Date”);
(3)
that any such Securities not tendered or
accepted for payment shall continue to accrue interest, if any;
(4)
that, unless the Company defaults in the
payment of the Change of Control Payment, all such Securities accepted for
payment pursuant to the Change of Control Offer shall cease to accrue interest,
if any, after the Change of Control Payment Date;
(5)
that Holders of such Securities electing
to have any such Securities purchased pursuant to a Change of Control Offer
shall be required to surrender such Securities properly endorsed, with the form
entitled “Option of Holder to Elect Purchase” on the reverse of such Securities
properly completed, together with other customary documents as the Company may
reasonably request, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the Change
of Control Payment Date;
(6)
that Holders of such Securities shall be
entitled to withdraw their election if the Paying Agent receives, not later
than the close of business on the second Business Day preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of such Securities
delivered for purchase, and a statement that such Holder of such Securities is
withdrawing its election to have such Securities purchased; and
7
(7)
that Holders of such Securities whose
Securities are being purchased only in part shall be issued new Securities of
Series No. 1 and Series No. 2 equal in principal amount to the unpurchased
portion of such Securities surrendered, which unpurchased portion must be equal
to $1,000 in principal amount or an integral multiple thereof.
(C)
If any of such Securities subject to a
Change of Control Offer are in the form of a Global Security, then the Company
shall modify such notice to the extent necessary to accord with the Applicable
Procedures of the Depositary applicable to offers to purchase.
(D)
On the Change of Control Payment Date,
the Company shall, to the extent lawful, (1) accept for payment all such
Securities or portions thereof properly tendered pursuant to the Change of
Control Offer, (2) deposit with the Paying Agent in immediately available funds
an amount equal to the Change of Control Payment in respect of all such
Securities or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee the Securities of Series No. 1 or Series No. 2 so
accepted together with an Officer’s Certificate stating the aggregate principal
amount of such Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly
mail to each Holder of such Securities so tendered the Change of Control
Payment for such Securities, and the Trustee shall promptly authenticate and mail
(or cause to be transferred by book-entry) to each Holder of such Securities a
new Security equal in principal amount to any unpurchased portion of such
Securities surrendered, if any;
provided
that
each such new Security
shall be in a principal amount of $1,000 or an integral multiple thereof. Any such Security not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(E)
The Change of Control provisions
described above that require the Company to make a Change of Control Offer
following a Change of Control shall be applicable whether or not any other
provisions of this Supplemental Indenture are applicable.
(F)
Notwithstanding anything to the contrary
in this Section 3, the Company will not be required to make a Change of
Control Offer upon a Change of Control if (1) a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 3 and purchases all Securities of
Series No. 1 and Series No. 2 properly tendered and not withdrawn under the
Change of Control offer, or (2) notice of redemption has been given pursuant to
Section 2 of this Article (“Optional Redemption”) unless and until
there is a default in payment of the applicable redemption price.
(G)
The provisions described in this Section 3
(“Offer to Purchase Upon Change of Control”) are subject to the provisions of Section 6(L)
of this Article (“Covenants—Termination of Selected Covenants”).
SECTION 4.
Offer to Purchase by Application of Excess
Proceeds.
(A)
In the event that, pursuant to Section 6(E)
of this Article (under the heading “Covenants—Asset Sales”), the Company
shall be required to commence an
8
Asset Sale Offer, it shall make an offer (an “Asset
Sale Offer”) to all Holders of Securities of Series No. 1 and Series No. 2,
and, if applicable, all holders of Indebtedness (other than Subordinated
Indebtedness) containing provisions similar to those set forth in this
Supplemental Indenture with respect to offers to purchase or redeem with the
proceeds of sales of assets, to purchase the maximum principal amount of such
Securities and such other Indebtedness that may be purchased out of the Excess
Proceeds (as defined below). The offer price in any Asset Sale Offer shall be
equal to 100% of the principal amount plus accrued and unpaid interest, if any,
to the date of purchase, and shall be payable in cash. If any Excess Proceeds
remain after consummation of an Asset Sale Offer, the Company may use those
Excess Proceeds for any purpose not otherwise prohibited by the Indenture,
including this Supplemental Indenture. If the aggregate principal amount of
such Securities and other Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee shall select such Securities
and such other Indebtedness to be purchased (i) on a pro rata basis, or (ii) if
the notes are listed on any national securities exchange, in compliance with
the requirements of the principal national securities exchange on which the
notes are listed. The Company shall advise the Trustee of such other Indebtedness
and the Trustee shall have no duty or responsibility to determine the accuracy
or correctness of such advice and shall be fully protected in relying on such
advice. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(B)
Any Asset Sale Offer shall remain open
for a period of 20 Business Days following its commencement and no longer,
except to the extent that a longer period is required by applicable law (the “Offer
Period”). No later than five Business
Days after the termination of the Offer Period (the “Purchase Date”), the
Company shall purchase the principal amount of such Securities required to be
purchased pursuant to paragraph (A)
above (the “Offer Amount”) or, if less than the Offer Amount has been tendered,
all such Securities validly tendered in response to the Asset Sale Offer.
(C)
Upon the commencement of an Asset Sale
Offer, the Company shall send, by first class mail, a notice to each of the
Holders of such Securities, with a copy to the Trustee, stating:
(1)
that the Asset Sale Offer is being made
pursuant to this Section 4 and Section 6(E) of this Article (under
the heading “Covenants—Asset Sales”) and
the length of time the Asset Sale Offer shall remain open;
(2)
the Offer Amount, the purchase price and
the Purchase Date;
(3)
that any such Security not tendered or
accepted for payment shall continue to accrue interest, if any;
(4)
that, unless the Company defaults in making
such payment, any such Security accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest, if any, after the Purchase Date;
(5)
that Holders of such Securities electing
to have such Securities purchased pursuant to any Asset Sale Offer shall be
required to surrender such Securities, with the form entitled “Option of Holder
to Elect Purchase” on the reverse of such Securities properly completed,
together with other customary documents as the Company may reasonably request, to
the Paying Agent at the
9
address specified in the notice prior to the close of business on the
third Business Day preceding the Purchase Date;
(6)
that Holders of such Securities shall be
entitled to withdraw their election if the Paying Agent receives, not later
than the close of business on the second Business Day preceding the Purchase
Date, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of such Securities delivered for
purchase, and a statement that such Holder of such Securities is withdrawing
its election to have such Securities purchased;
(7)
that, if the aggregate principal amount
of such Securities surrendered by Holders of such Securities exceeds the Offer
Amount, the Trustee shall select such Securities to be purchased on a
pro rata
basis (with such adjustments as
may be deemed appropriate by the Trustee so that only such Securities in
denominations of $1,000, or integral multiples thereof, shall be purchased);
and
(8)
that Holders of such Securities whose
Securities are being purchased only in part shall be issued new such Securities
equal in principal amount to the unpurchased portion of the Securities
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof.
(D)
If any of such Securities subject to an
Asset Sale Offer is in the form of a Global Security, then the Company shall
modify such notice to the extent necessary to accord with the Applicable
Procedures of the Depositary applicable to offers to purchase.
(E)
On or before the Purchase Date, the
Company shall, to the extent lawful, accept for payment, on a
pro
rata
basis to the extent necessary, the Offer Amount of such Securities or portions
thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been tendered, all such Securities tendered, and shall deliver to
the Trustee an officer’s certificate stating that such Securities or portions
thereof were accepted for payment by the Company in accordance with the terms
of this Section 4. The Paying Agent shall promptly (but in any case not
later than five days after the Purchase Date) mail or deliver to each tendering
Holder of such Securities an amount equal to the purchase price of such
Securities tendered by such Holder of such Securities and accepted by the
Company for purchase, and the Company shall promptly issue a new such Security,
and the Trustee, upon written request from the Company, shall authenticate and
make available for delivery such new Security to such Holder of such
Securities, in a principal amount equal to any unpurchased portion of such
Security surrendered;
provided
that
each such new Security
shall be in a principal amount of $1,000 or an integral multiple thereof. Any such Security not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer on the Purchase Date or as soon as practicable
thereafter.
(F)
The provisions of this Section 4 (“Offer
to Purchase by Application of Excess Proceeds”) are subject to the provisions
of Section 6(L) of this Article (“Covenants—Termination of Selected
Covenants”).
10
SECTION 5.
Offers to Purchase—General.
(A)
If the Change of Control Payment Date or
Purchase Date is on or after a Regular Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest, if any, shall be paid
to the Person in whose name such Security is registered at the close of
business on such Regular Record Date, and no additional interest shall be
payable to Holders of such Securities who tender such Securities pursuant to
the Change of Control Offer or the Asset Sale Offer.
(B)
The Company shall comply with the
requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in
connection with a Change of Control Offer or an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
Change of Control Offer or Asset Sale Offer provisions of this Supplemental
Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under the
Change of Control Offer or Asset Sale Offer provisions of this Supplemental Indenture
by virtue of such compliance.
SECTION 6.
Covenants.
So long as any Securities of Series
No. 1 or Series No. 2 shall remain Outstanding, each of the following shall be
an additional covenant of the Company under the Indenture unless the holders of
a majority in principal amount of the Securities of Series No. 1 and Series No.
2 then Outstanding hereby consent otherwise:
(A)
Restricted Payments
.
(1)
The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly:
(a)
declare or pay
any dividend or make any other payment or distribution on account of the
Company’s or any of its Restricted Subsidiaries’ Equity Interests (including,
without limitation, any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the direct
or indirect holders of the Company’s or any of its Restricted Subsidiaries’
Equity Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of
the Company) or dividends, payments or distributions payable to the Company or
a Restricted Subsidiary of the Company;
(b)
purchase,
redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving the Company) any
Equity Interests of the Company (other than any such Equity Interests owned by
the Company or any Restricted Subsidiary);
(c)
make any
payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Subordinated Indebtedness (other than
intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries), except (i) a payment of interest or principal at the
Stated Maturity thereof or (ii) a payment, purchase, redemption, defeasance,
acquisition or retirement, in each case due within one year of the Stated
Maturity thereof; or
11
(d)
make any
Restricted Investment
(all
such payments and other actions set forth in these clauses (a) through (d)
above being collectively referred to as “Restricted Payments”), unless, at the
time of and after giving effect to such Restricted Payment:
(x)
no Default or Event of
Default has occurred and is continuing or would occur as a consequence of such
Restricted Payment; and
(y)
the Company would, at the
time of such Restricted Payment and after giving pro forma effect thereto as if
such Restricted Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 6(B)(1)
of this Supplemental Indenture (under the heading “Incurrence of Indebtedness
and Issuance of Preferred Stock”); and
(z)
such Restricted Payment,
together with the aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries after January 1, 2005 (excluding
Restricted Payments permitted by clauses 6(A)(2)(b), 6(A)(2)(c), 6(A)(2)(d),
6(A)(2)(f), 6(A)(2)(g), 6(A)(2)(h), 6(A)(2)(i), 6(A)(2)(j), 6(A)(2)(k) and
6(A)(2)(l), is less than the sum, without duplication of:
(i)
up to 50% of
Excess Cash Flow generated since January 1, 2005 to the end of the Company’s
most recently ended fiscal quarter for which internal financial statements are
available,
plus
(ii)
100% of the
aggregate net cash proceeds received by the Company from January 1, 2005
as a contribution to its common equity capital or from the issue or sale of
Equity Interests of the Company (other than Disqualified Stock and other than
sales to a Restricted Subsidiary of the Company) or from the issue or sale of
convertible or exchangeable Disqualified Stock or convertible or exchangeable
debt securities of the Company that have been converted into or exchanged for
such Equity Interests (other than Disqualified Stock or debt securities sold to
a Subsidiary of the Company),
plus
;
(iii)
100% of the
aggregate net cash proceeds received upon the sale or other disposition of any
Restricted Investment made since the date of the indenture;
plus
the net reduction in Restricted Investments in any
Person resulting from dividends, repayments of loans or advances or other
transfers of assets subsequent to the date of the indenture, in each case to
the Company or any Restricted Subsidiary from such person;
plus
to the extent that the ability to make Restricted Payments was reduced as the
result of the designation of an Unrestricted Subsidiary, the portion
(proportionate to the Company’s equity
12
interest in such Subsidiary) of the Fair
Market Value of the net assets of such Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is redesignated, or liquidated or merged into, a
Restricted Subsidiary;
provided
, in
each case, that the foregoing may not exceed, in the aggregate, the amount of
all Investments which previously reduced the ability to make Restricted
Payments,
plus
(iv)
50% of any cash
dividends received by the Company or a Restricted Subsidiary of the Company
after the date of the indenture from an Unrestricted Subsidiary of the Company,
to the extent that such dividends were not otherwise included in Consolidated
Net Income of the Company for such period.
(2)
Notwithstanding the foregoing, this Section 6(A)
shall not prohibit:
(a)
the payment of
any dividend within 60 days after the date of declaration of the dividend, if
at the date of declaration the dividend payment would have complied with the
provisions of this Supplemental Indenture;
(b)
the redemption,
repurchase, retirement, defeasance or other acquisition of any Subordinated Indebtedness
of the Company or of any Equity Interests of the Company or any of its
Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary of the
Company) of, Equity Interests of the Company (other than Disqualified Stock);
provided
that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause 6(A)(1)(z)(ii);
(c)
the defeasance,
redemption, repurchase or other acquisition of Subordinated Indebtedness of the
Company with the net cash proceeds from an incurrence of Permitted Refinancing
Indebtedness;
(d)
the payment of
any dividend or other payment or distribution by a Restricted Subsidiary of the
Company to the holders of its Equity Interests on a pro rata basis;
(e)
the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Company or any Restricted Subsidiary held by any current or former
officer, director or employee of the Company (or any of its Restricted
Subsidiaries) pursuant to any equity subscription agreement, stock option
agreement, severance agreement or similar agreement;
provided
that
the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed $5.0 million in any twelve-month
period;
13
(f)
the repurchase
of Equity Interests upon the exercise of stock options to the extent such
Equity Interests represent a portion of the exercise price of those stock
options;
provided
that the aggregate price paid
for all such repurchased Equity Interests may not exceed $5.0 million in any
twelve-month period;
(g)
the declaration
and payment of dividends to holders of any class or series of Disqualified Stock
of the Company or any of its Restricted Subsidiaries or preferred stock of its
Restricted Subsidiaries issued in accordance with the terms of the Indenture,
including this Supplemental Indenture;
(h)
the declaration
and payment of regular quarterly cash dividends in respect of the Company’s
common stock in an aggregate amount not to exceed $8.0 million during the
fourth quarter of the fiscal year 2004;
(i)
payments, not
to exceed $1.0 million in the aggregate since the date of the indenture, to
holders of the Company’s Capital Stock in lieu of the issuance of fractional
shares of its Capital Stock;
(j)
the
consummation of the transactions or the making of any payment specifically
provided for, or required by, the Plan of Reorganization;
(k)
the purchase,
redemption, acquisition, cancellation or other retirements for a nominal value
per right of any rights granted to all the holders of Capital Stock of the
Company pursuant to any shareholder’s rights plan adopted for the purpose of
protecting shareholders from unfair takeover tactics;
provided
,
that any such purchase, redemption, acquisition, cancellation or other
retirement of such rights is not for the purpose of evading the limitations of
this covenant (all as determined in good faith by the Board of Directors of the
Company);
(l)
other
Restricted Payments from and after January 1, 2005 in an aggregate amount
not to exceed $60.0 million;
provided
that, with respect to clauses (e), (g), (h) and (l)
above, no Default or Event of Default shall have occurred and be continuing or
would be caused by such transaction.
(3)
The amount of all Restricted Payments
(other than cash) shall be the Fair Market Value on the date of the Restricted
Payment of the asset(s) or securities proposed to be transferred or issued by
the Company or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. The Fair Market Value of any assets or securities that are
required to be valued by this covenant shall be determined by the Board of
Directors whose resolution with respect thereto shall be delivered to the
Trustee; except that, if such Fair Market Value is less than $35 million, then
such Fair Market Value may be determined by the Chief Financial Officer of the
Company instead of the Board of Directors.
14
(4)
The provisions of this Section 6(A)
(“Restricted Payments”) are subject to the provisions of Section 6(L) (“Covenants—Termination
of Selected Covenants”).
(B)
Incurrence of Indebtedness and Issuance
of Preferred Stock
.
(1)
The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, “incur”) any
Indebtedness (including Acquired Debt), and the Company shall not issue any
Disqualified Stock and shall not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock;
provided
, however
, that the Company may
incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and any
Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue
preferred stock if the Fixed Charge Coverage Ratio for the Company’s most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock or preferred stock is issued would have
been at least 2.0 to 1, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred or Disqualified Stock or preferred stock had been issued, as
the case may be, at the beginning of such four-quarter period.
(2)
Notwithstanding the foregoing, this Section 6(B)
shall not prohibit the incurrence of any of the following items of Indebtedness
(collectively, “Permitted Debt”):
(a)
the incurrence
by the Company or any of its Restricted Subsidiaries pursuant to this clause
(a) of additional Indebtedness and letters of credit under one or more Credit
Facilities (with letters of credit being deemed to have a principal amount
equal to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder), and/or pursuant to any Permitted Receivables
Transactions (including any Receivables Facility Attributed Indebtedness), in
an aggregate principal amount at any one time outstanding not to exceed $350.0
million,
less
the aggregate amount of all Net
Proceeds of Asset Sales applied by the Company or any of its Restricted
Subsidiaries since the date of the Indenture to repay any term or revolving
Indebtedness under a Credit Facility, in each case pursuant to Section 6(E)(2)(a)(under
the heading “Asset Sales”) of this
Article; provided, however, that the aggregate amount permitted to be incurred
under the clause (a) shall in no event be reduced to below $150.0 million;
(b)
the incurrence
by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(c)
the incurrence
by the Company of Indebtedness represented by the Securities of Series No. 1 to
be issued on the Issue Date (and any related Securities of Series No. 2 to be
issued pursuant to the Registration Rights Agreement);
15
(d)
the incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any
part of the purchase price or cost of design,
construction, installation, or improvement or lease of property (real or
personal), plant or equipment used in the business of the Company or its
Restricted Subsidiaries, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to refund, refinance, replace,
defease or discharge any Indebtedness incurred pursuant to this clause (d), not
to exceed $50.0 million at any time outstanding;
(e)
the incurrence
by the Company or any of its Restricted Subsidiaries of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance, replace, defease or discharge Indebtedness (other than intercompany
Indebtedness) that was incurred as permitted under Section 6(B)(1) or
clauses (b), (c), (d), (q) or (r) of this Section 6(B)(2);
(f)
the incurrence
by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company or any of its Restricted
Subsidiaries;
provided,
however
, that:
(i)
if the Company
is the obligor on such Indebtedness, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Securities of Series No. 1 or Series No. 2; and
(ii)
(A) any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary and (B) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary shall be
deemed, in each case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (f);
(g)
the incurrence
by the Company or any of its Restricted Subsidiaries of Hedging Obligations;
(h)
the guarantee
by the Company or any of its Restricted Subsidiaries of Indebtedness of the
Company or any of its Restricted Subsidiaries that was permitted to be incurred
by another provision of this Section 6(B) (“Incurrence of Indebtedness and
Issuance of Preferred Stock”),
provided
that
in the event that the Indebtedness shall be subordinated in right of payment to
the Securities of Series No. 1 or Series No. 2, then the Guarantee of that
Indebtedness shall be subordinated in right of payment to such Securities;
(i)
the accrual of
interest, the accretion or amortization of original issue discount, the payment
of interest on any Indebtedness in
16
the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock in the form of
additional shares of such Disqualified Stock shall not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of
this Section 6(B) (“Incurrence of Indebtedness and Issuance of Preferred
Stock”);
provided
, in each such
case, that the amount thereof is included in the Fixed Charges of the Company
as accrued;
(j)
the issuance by
any of the Company’s Restricted Subsidiaries to the Company or to any of its
Restricted Subsidiaries of shares of preferred stock;
provided,
however,
(i)
any subsequent
issuance or transfer of Equity Interests that results in any such preferred
stock being held by a Person other than the Company or a Restricted Subsidiary
of the Company; and
(ii)
any sale or
other transfer of any such preferred stock to a Person that is not either the
Company or a Restricted Subsidiary of the Company;
will be deemed, in each
case, to constitute an issuance of such preferred stock by such Subsidiary that
was not permitted by this clause (j);
(k)
the incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness in respect
of workers’ compensation claims, self-insurance obligations, bankers’
acceptances and bid, performance and surety bonds, in each case in the ordinary
course of business, including guarantees or obligations of the Company or any Restricted
Subsidiary thereof with respect to letters of credit, issued in the ordinary
course of business, supporting such obligations;
(l)
the incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness arising
from the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently drawn against insufficient funds, so long as
such Indebtedness is covered within 5 business days;
(m)
the incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness that may
be deemed to arise as a result of agreements of the Company or any Restricted
Subsidiary, providing for indemnification, adjustment or purchase price or
similar obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or Equity Interest of a Subsidiary,
provided
that the maximum aggregate liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds (including
non-cash proceeds) actually received by the Company and/or such Subsidiary in
connection with all such dispositions;
(n)
the incurrence
by the Company or any Restricted Subsidiary of the Company of Indebtedness
represented by letters of credit, guarantees of Indebtedness or other similar
instruments to the
17
extent (i) such instruments are cash
collateralized and (ii) the Company or such Restricted Subsidiary would have
been permitted to expend the funds used to cash collateralize such instrument directly
under the terms of the Indenture, including this Supplemental Indenture;
(o)
the incurrence
by the Company or any of its Restricted Subsidiaries of Indebtedness in
connection with the deferred purchase price of goods or services, or progress
payments in connection with such goods or services, including turbines,
transformers and similar equipment, so long as such obligations are incurred in
the ordinary course of business;
(p)
the incurrence
of Indebtedness by the Company or any of its Restricted Subsidiaries in the
form of loans from an insurance company or insurance premium finance company to
finance all or any portion of the premium of any insurance policy maintained by
the Company or any of its Restricted Subsidiaries, so long as such insurance
policy is written in the ordinary course of business and names the Company or
any of its Restricted Subsidiaries as a named beneficiary thereunder;
(q)
the incurrence
of Indebtedness by the Company or any Restricted Subsidiary in connection with
or related to the financing of the acquisition by the Company or any Restricted
Subsidiary of the Company’s existing undivided leasehold interests in Colstrip
IV, including the assumption of any Indebtedness associated with such interest;
(r)
the incurrence
by the Company or any Restricted Subsidiary of additional Indebtedness in an
aggregate principal amount (or accreted value, as applicable), including all
Permitted Refinancing Indebtedness incurred to refund, refinance, replace,
defease or discharge any Indebtedness incurred pursuant to this clause (r), not
to exceed $40.0 million at any time outstanding.
(3)
For purposes of determining compliance
with this Section 6(B) (“Incurrence of Indebtedness and Issuance of
Preferred Stock”):
(a)
in the event
that an item of proposed Indebtedness, including Acquired Debt, meets the
criteria of more than one of the categories of Permitted Debt described in
clauses (a) through (r) above, or is entitled to be incurred pursuant to the
first paragraph of this Section 6(B), the Company shall be permitted to
classify (or later classify or reclassify such Indebtedness, in whole or in
part in its sole discretion) such item of Indebtedness in any manner that
complies with this Section 6(B); and
(b)
for the
purposes of determining compliance with any dollar-denominated restriction on
the incurrence of Indebtedness denominated in a foreign currency, the
dollar-equivalent principal amount of such Indebtedness incurred pursuant
thereto shall be
18
calculated based on the relevant currency
exchange rate in effect on the date that such Indebtedness was incurred.
(4)
The provisions of this Section 6(B)
(“Incurrence of Indebtedness and Issuance of Preferred Stock”) are subject to
the provisions of Section 6(L) (“Covenants—Termination of Selected
Covenants”).
(C)
Liens
.
(1)
The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or otherwise cause or suffer to exist or become effective any
Lien of any kind securing Indebtedness, Attributable Debt or trade payables on
any of their property or assets, now owned or hereafter acquired, except
Permitted Liens.
(2)
The provisions of this Section 6(C)
(“Liens”) are subject to the provisions of Section 6(L) (“Covenants –
Termination of Selected Covenants”).
(D)
Dividend and Other Payment Restrictions
Affecting Subsidiaries
.
(1)
The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, create or
permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to:
(a)
pay dividends
or make any other distributions on its Capital Stock to the Company or any of
its Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to
the Company or any of its Restricted Subsidiaries;
(b)
make loans or
advances to Company or any of its Restricted Subsidiaries; or
(c)
transfer any of
its properties or assets to the Company or any of its Restricted Subsidiaries.
(2)
Notwithstanding the foregoing, this Section 6(D)
shall not apply to encumbrances or restrictions existing under or by reason of:
(a)
agreements
governing Existing Indebtedness and Credit Facilities as in effect on the Issue
Date and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of the agreements and
other customary encumbrances and restrictions existing on or after the Issue
Date that are not more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in those
agreements on the Issue Date;
provided
that
the application of such restrictions or encumbrances to additional Restricted
Subsidiaries not subject thereto on the Issue Date shall not be deemed to make
such restrictions more restrictive;
19
(b)
the Indenture, including
this Supplemental Indenture, the Mortgages, the Securities of Series No. 1 and
Series No. 2 and the related First Mortgage Bonds;
(c)
applicable law
(including, without limitation, rules, regulations and agreements with
regulatory authorities) or any order issued pursuant to a federal, state or
local statute or any order by or agreement with any court or governmental
agency or body having jurisdiction over the Company or any of its Subsidiaries
or any of their respective properties;
(d)
any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness or Capital Stock was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired;
provided
that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Supplemental Indenture to be incurred;
(e)
customary
encumbrances and restrictions (including, without limitation, net worth
restrictions, restrictions on transfer, non-assignment provisions or subletting
provisions) contained in contracts, leases, permits, licenses and other
agreements entered into in the ordinary course of business;
(f)
purchase money
obligations for property acquired in the ordinary course of business and
Capital Lease Obligations that impose restrictions on the property, purchased
or leased, of the nature described in
clause 6(D)(1)(c) of this Article;
(g)
any agreement
for the sale or other disposition of a Restricted Subsidiary that restricts
distributions or dispositions of assets by that Restricted Subsidiary pending
its sale or other disposition;
(h)
Permitted
Refinancing Indebtedness;
provided
that the restrictions contained in the agreements governing
such Permitted Refinancing Indebtedness are not materially more restrictive,
taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(i)
Liens securing
Indebtedness otherwise permitted to be incurred under the provisions of Section 6(C)
of the Article (“Liens”) that limit the right of the debtor to dispose of
the assets subject to such Liens;
(j)
provisions
prohibiting or limiting the disposition or distribution of assets or property
in joint venture agreements, asset sale agreements, stock sale agreements,
sale-leaseback agreements and other
20
similar agreements entered into in the
ordinary course of business; provided that such prohibitions or limitations are
applicable only to the assets that are subject to such agreement;
(k)
any
Indebtedness or contractual requirements incurred with respect to a Permitted
Receivables Transaction relating exclusively to a Receivables SPV that, in the
good faith determination of the Board of Directors of the Company, are
necessary to effect such Permitted Receivables Transaction;
(l)
restrictions on
cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;
(m)
Indebtedness of
a Restricted Subsidiary of the Company existing at the time it became a
Restricted Subsidiary if such restriction was not created in connection with or
in anticipation of the transaction or series of transactions pursuant to which
such Subsidiary became a Restricted Subsidiary or was acquired by the Company;
(n)
with respect to
Section 6(D)(1)(c) of this Article only, restrictions encumbering
property at the time such property was acquired by the Company or any of its
Subsidiaries, so long as such restriction relates solely to the property so
acquired and was not created in connection with or in anticipation of such
acquisition;
(o)
an agreement
governing Indebtedness permitted to be incurred pursuant to the covenant
described in Section 6(B) (“Incurrence of Indebtedness and Issuance of
Preferred Stock”);
provided
that
the provisions relating to such encumbrances or restrictions contained in such
Indebtedness, taken as a whole, are not materially more restrictive than those
contained in the indenture governing the Securites of Series No. 1 and Series
No. 2;
(p)
encumbrances or
restrictions on Excluded Assets; and
(q)
any encumbrance
or restriction of the type referred to in Sections 6(D)(1)(a), 6(D)(1)(b),
6(D)(1)(c) of this Article imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in
clauses (a) through (p) of this Section 6(D);
provided
that such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more materially restrictive
with respect to such dividend and other payment restrictions than those
contained in the dividend or other payment restrictions prior to such
amendment, modification, restatement, renewals, increase, supplement,
refunding, replacement or refinancing.
21
(3)
The provisions of this Section 6(D)
(“Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries”)
are subject to the provisions of Section 6(L) (“Covenants—Termination of Selected Covenants”).
(E)
Asset Sales
.
(1)
The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a)
the Company (or
the Restricted Subsidiary, as the case may be) receives consideration at the
time of the Asset Sale at least equal to the Fair Market Value of the assets or
Equity Interests issued or sold or otherwise disposed of; and
(b)
at least 75% of
the consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash. For purposes of this Section 6(E)(1)(b),
each of the following shall be deemed to be cash:
(i)
any liabilities
of the Company or any Restricted Subsidiary, as shown on the Company’s or such
Restricted Subsidiary’s most recent consolidated balance sheet (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Securities of Series No. 1 and Series No. 2) that are assumed by the transferee
of any such assets pursuant to a customary novation agreement that releases the
Company or such Restricted Subsidiary from further liability;
(ii)
any securities,
notes or other obligations received by the Company or any such Restricted
Subsidiary from such transferee that are converted by the Company or such
Restricted Subsidiary into cash within 90 days of the receipt of such
securities, notes or other obligations, to the extent of the cash received in
that conversion; and
(iii)
any consideration
in the form of readily marketable securities.
(2)
Within 365 days after the receipt of any
Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at
its option:
(a)
to repay
Secured Indebtedness of the Company or any Restricted Subsidiary, including
Senior Secured Debt under a Credit Facility,
provided
that
such Indebtedness is not Subordinated Indebtedness;
(b)
to acquire all
or substantially all of the assets of, or a majority of the Voting Stock of,
another Person engaged primarily in a Permitted Business;
22
(c)
in the case of
the sale of assets subject to the Lien of a Mortgage, if required by the terms
of such Mortgage, to deposit such Net Proceeds with the trustee under such Mortgage,
including, without limitation, for purposes of obtaining the release of such
assets from such Lien as a condition to such sale; except that if such Net
Proceeds are subsequently withdrawn by the Company, such Net Proceeds shall, as
of the date of such withdrawal, not be considered applied or invested as
provided in this Section 6(E)(2)(c) for purposes of determining the amount
of Excess Proceeds as described below (but if applied as provided in paragraphs
(a), (b), (d), (e) or (f) of this Section 6(E)(2), such Net Proceeds shall
not be considered “Excess Proceeds,” it being understood that Net Proceeds will
be deemed to have been so applied if and to the extent withdrawn from a
Mortgage on the basis of property additions acquired within 365 days of such
withdrawal by the Company (i) other than property additions made in the
ordinary course of business or (ii) property additions made specifically for
the purpose of obtaining such withdrawal);
(d)
to make a
capital expenditure in connection with a Permitted Business;
(e)
to acquire
other long-term assets that are used or useful in a Permitted Business; or
(f)
any combination
of the foregoing.
Pending the final application of any Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Supplemental Indenture.
(3)
Any Net Proceeds from Asset Sales that
are not applied or invested as provided in Section 6(E)(2) hereof shall
constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds
exceeds $30.0 million, the Company shall make an Asset Sale Offer pursuant to
the provisions of Section 4 of this Article.
(4)
To the extent that any Asset Sale
constitutes the sale, conveyance or other disposition of all or substantially
all of the assets of the Company and its Restricted Subsidiaries taken as a
whole, such transaction shall be governed by the provisions of this Article in
Sections 3 and 6(F) (under the heading “Offer to Purchase Upon a Change of
Control” and the heading “Covenants—Merger, Consolidation or Sale of Assets”)
and not by the provisions of this Section 6(E) or Section 4 of this
Article.
(5)
The provisions of this Section 6(E)
are subject to the provisions of Section 6(L) (“Covenants – Termination of
Selected Covenants”).
(F)
Merger, Consolidation or Sale of Assets
.
(1)
The Company shall not, directly or
indirectly consolidate with or merge into any other Person, or convey, or
otherwise transfer or dispose of, or
23
lease, the properties of the Company and its Restricted Subsidiaries,
taken as a whole, as or substantially as an entirety, to another Person, in one
or more related transactions; unless:
(a)
the Company or
the Person formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or other transfer, or which leases, the
properties of the Company and its Restricted Subsidiaries, taken as a whole, as
or substantially as an entirety, complies with Article Ten of the Original
Indenture and the Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, transfer, conveyance
or other disposition or lease has been made, shall be deemed a Successor under
the Indenture;
(b)
the Successor
shall expressly assume the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all Securities of Series No. 1 and
Series No. 2 and the related First Mortgage Bonds, and the performance and
observation of every covenant and condition of the Indenture, the Registration
Rights Agreement, the Montana Mortgage and the South Dakota Mortgage; and
(c)
the Company or
the Person formed by or surviving any such consolidation or merger (if other
than the Company), or to which such sale, assignment, transfer, conveyance or
other disposition has been made shall, on the date of such transaction after
giving pro forma effect thereto and any related financing transactions as if the
same had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 6(B)(1) of this
Supplemental Indenture (under the heading “Incurrence of Indebtedness and
Issuance of Preferred Stock”);
provided
, however,
that this clause (c) shall be subject to the termination
provisions of Section 6(L) (“Covenants – Termination of Selected Covenants”).
(2)
The requirements described in clause (c)
of Section 6(F)(1) of this Article shall not apply to:
(a)
a merger of the
Company with an Affiliate solely for the purpose of reincorporating the Company
in another jurisdiction;
(b)
any sale,
transfer, assignment, conveyance, lease or other disposition of assets between
or among the Company and its Restricted Subsidiaries; or
(c)
any sale,
transfer, assignment, conveyance, lease or other disposition of Excluded
Assets.
(3)
This Section 6(F) does not prevent
or restrict:
(a)
any conveyance
or other transfer, or lease, of any part of the Company’s properties which does
not constitute the entirety, or
24
substantially the entirety, thereof; or
(b)
any
consolidation or merger with another Person where the Company is the surviving
corporation or any conveyance, or other transfer, or lease of properties of any
Restricted Subsidiaries to the Company.
(4)
The entity or Person formed by or
surviving any consolidation or merger (if other than the Company) shall succeed
to, and be substituted for, and may exercise every right and power of the
Company under the indenture. In the
event of a consolidation, merger or transfer of assets in accordance with the
provisions above and Article Ten of the Original Indenture (except in the
case of a lease), the Company shall be released and discharged from all
obligations under the Indenture and on the Securities of Series No. 1 and
Series No. 2 then outstanding.
(G)
Transactions with Affiliates
.
(1)
The Company shall not, and will not
permit any of its Restricted Subsidiaries to, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each, an “Affiliate Transaction”),
unless:
(a)
the Affiliate
Transaction is on terms that are no less favorable (as reasonably determined in
good faith by the Company) to the Company or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated third party; and
(b)
the Company delivers
to the Trustee:
(i)
with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $15.0 million, a resolution of the Board
of Directors set forth in an Officer’s Certificate certifying that such
Affiliate Transaction complies with this Section 6(G) and that such
Affiliate Transaction has been approved by a majority of the disinterested
members of the Board of Directors; and
(ii)
with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $40.0 million, an opinion as to the
fairness to the Company or such Restricted Subsidiary of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal
or investment banking firm of national standing.
25
(2)
The following items shall not be deemed
to be Affiliate Transactions and, therefore, shall not be subject to the
provisions of Section 6(G)(1) of this Article:
(a)
any employment
agreement, directors’ letter, employment benefit plan, officer and director
indemnification agreement or similar agreement entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of business or
approved by the Board of Directors in good faith;
(b)
transactions
between or among the Company and/or its Restricted Subsidiaries;
(c)
transactions
with a Person that is an Affiliate of the Company solely because the Company or
a Restricted Subsidiary owns or controls, directly or indirectly, an Equity
Interest in such Person;
(d)
payment of
reasonable directors fees to Persons who are not otherwise Affiliates of the
Company;
(e)
issuances of
Equity Interests (other than Disqualified Stock) to Affiliates of the Company
or its Restricted Subsidiaries;
(f)
Permitted
Investments pursuant to this Supplemental Indenture and Restricted Payments
that are permitted by the provisions of Section 6(A) of this Article (under
the heading “Restricted Payments”);
(g)
fees,
compensation and advances paid to and indemnity provided on behalf of
directors, officers, employees or consultants of the Company or any Restricted
Subsidiary of the Company in the ordinary course of business;
(h)
transactions
pursuant to any agreement in effect on the date of this Supplemental Indenture
as the same may be amended from time to time in any manner not materially less
favorable to the Holders of the Securities of Series No. 1 and Series No. 2;
(i)
loans or
advances to officers, directors and employees of the Company or any Restricted
Subsidiary made in the ordinary course of business, and in compliance with
applicable law in an aggregate amount not to exceed $5.0 million outstanding at
any one time;
(j)
sales or other
transfers or dispositions of accounts receivable and other related assets in a Permitted
Receivables Transaction, and acquisitions of Permitted Investments in
connection with a Permitted Receivables Transaction and other transactions
contemplated by the associated Receivables Purchase Documents;
(k)
transactions
with customers, clients, suppliers, joint venture partners or purchasers or
sellers of goods or services, in each
26
case, in the ordinary course of business
(including pursuant to joint venture agreements) and otherwise in compliance
with the terms of the indenture that are fair to the Company and its Restricted
Subsidiaries, in the reasonable determination of the Company, or are on terms
not materially less favorable taken as a whole as might reasonably have been
obtained at such time from an unaffiliated party;
(l)
any repurchase,
redemption or other retirement of Capital Stock of the Company held by
employees of the Company or any of its Subsidiaries at a price not in excess of
the Fair Market Value thereof, and, if greater than $5.0 million, approved by
the Board of Directors;
(m)
the
transactions or payments specifically provided for in, or required by, the Plan
of Reorganization and the payment of all fees and expenses related thereto; and
(n)
any agreement
to do any of the activities described in clauses (a) through (m) of this
paragraph.
(3)
The provisions of this Section 6(G)
(“Transactions with Affiliates”) are subject to the provisions of Section 6(L)
of this Article (“Covenants—Termination of Selected Covenants”).
(H)
Sale and Leaseback Transactions
.
(1)
The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, enter into any sale and leaseback
transaction;
provided
that the Company or any Restricted Subsidiary may enter into a sale and
leaseback transaction if:
(a)
the Company or
that Restricted Subsidiary could have incurred Indebtedness in an amount equal
to the Attributable Debt relating to such sale and leaseback transaction under
the Fixed Charge Coverage Ratio test in Section 6(B)(1) of this Article (under
the heading “Incurrence of Indebtedness and Issuance of Preferred Stock”);
(b)
the gross cash
proceeds of that sale and leaseback transaction are at least equal to the Fair
Market Value, as determined in good faith by the Board of Directors and set
forth in an Officer’s Certificate delivered to the Trustee, of the property
that is the subject of that sale and leaseback transaction; and
(c)
if such sale
and leaseback transaction constitutes an Asset Sale, the transfer of assets in
that sale and leaseback transaction is permitted by, and the Company applies
the proceeds of such transaction in compliance with, Section 4 of this Article (“Offer
to Purchase by Application of Excess Proceeds”) and Section 6(E) of this Article (“Covenants—Asset
Sales”).
(2)
The provisions of this Section 6(H)
are subject to the provisions
27
of Section 6(L) of this Article (“Covenants – Termination of
Selected Covenants”).
(I)
Business Activities
.
(1)
The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, engage in any business other than
Permitted Businesses, except to such extent as would not be material to the
Company and its Subsidiaries taken as a whole.
(2)
The provisions of this Section 6(I)
(“Business Activities”) are subject to the provisions of Section 6(L) of
this Article (“Covenants—Termination of Selected Covenants”).
(J)
Payments for Consent
.
(1)
The Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, pay or cause to be
paid any consideration to or for the benefit of any Holder of Securities of
Series No. 1 or Series No. 2 for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Supplemental Indenture or
such Securities unless such consideration is offered to be paid and is paid to
all Holders of such Securities that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
(K)
Reports
.
(1)
Whether or not required by the
Commission, so long as any Securities of Series No. 1 or Series No. 2 are
outstanding, the Company shall make available to the Trustee, within the time
periods specified in the Commission’s rules and regulations (as if required):
(a)
all quarterly
and annual financial information that would be required to be contained in a
filing with the Commission on Forms 10-Q and 10-K if the Company were required
to file such Forms, including a “Management’s Discussion and Analysis of
Financial Condition and Results of Operations”; and
(b)
all current
reports that would be required to be filed with the Commission on Form 8-K if
the Company were required to file such reports.
(2)
In addition, whether or not required by
the Commission, the Company shall file a copy of all of the information and
reports referred to in clauses (a) and (b) of Section 6(K)(1) of this Article with
the Commission for public availability within the time periods specified in the
Commission’s rules and regulations (unless the Commission shall not accept such
a filing) and make such information available to securities analysts and
prospective investors upon request. In addition, the Company has agreed that,
for so long as any Securities of Series No. 1 or Series No. 2 remain
outstanding, at any time they are not required to file the reports required by
the preceding paragraphs with the
28
Commission, they shall furnish to the Holders of such Securities and to
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(3)
Delivery of reports, information and
documents to the Trustee under this Section 6(K) is for informational
purposes only and the Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including
the Company’s compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on one or more Officer’s Certificates).
(L)
Termination of Selected Covenants
.
From
and after the time that the Securities have an Investment Grade Rating from both
of the Rating Agencies and no Default or Event of Default has occurred and is
continuing under this Supplemental Indenture, the Company and its Restricted Subsidiaries
shall not thereafter be subject to the following provisions: Section 3, Section 4, Section 6(A),
Section 6(B), Section 6(C), Section 6(D), Section 6(E), Section 6(F)(1)(c),
Section 6(G), Section 6(H) and Section 6(I) of this Article (collectively,
the Sections entitled “Offer to Purchase Upon Change of Control,” “Offer to
Purchase by Application of Excess Proceeds,” “Covenants—Restricted Payments,” “Covenants—Incurrence
of Indebtedness and Issuance of Preferred Stock,” “Covenants—Liens,” “Covenants—Dividend
and Other Payment Restrictions Affecting Subsidiaries,” “Covenants—Asset Sales,”
“Covenants—Transactions with Affiliates,” “Covenants—Sale and Leaseback
Transactions,” and “Covenants—Business Activities”) (collectively, the “Terminated
Covenants”);
provided
, however
, that the provisions in Section 6(F) (except
with respect to Section 6(F)(1)(c) thereof, as set forth in that Section 6(F)),
Section 6(J) and Section 6(K) (under the headings “Covenants—Merger,
Consolidation or Sale of Assets” (except as set forth thereunder), “Covenants—Payments
for Consent,” and “Reports”) of this
Supplemental Indenture shall not be so terminated and shall continue to be
effective so long as the Securities of Series No. 1 and Series No. 2 remain
outstanding.
(M)
Designation of Restricted and
Unrestricted Subsidiaries
.
(1)
The Board of Directors may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if that designation
would not cause a Default or Event of Default.
If a Restricted Subsidiary is designated as an Unrestricted Subsidiary,
the aggregate Fair Market Value of all outstanding Investments owned by the
Company and its Restricted Subsidiaries in the Subsidiary so properly
designated will be deemed to be an Investment made as of the time of the
designation and will reduce the amount available for Restricted Payments under the
first paragraph of the covenant described above under the caption “Restricted
Payments” in Section 6(A)(1) of this Article or Permitted Investments
as determined by the Company. That designation
will only be permitted if the Investment would be permitted at that time and if
the Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
(2)
The Board of Directors of the Company may
at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided
29
that no Default or Event of Default would be in existence following
such redesignation.
(N)
Limitation on Release of Mortgaged
Property;
The Company shall not release Mortgaged
Property (as defined in the South Dakota Mortgage) from the Lien of the South
Dakota Mortgage, pursuant to and in accordance with Section 8.03 of the
South Dakota Mortgage.
(O)
Limitation on Subjecting Property or
Other Assets to the Lien of the Other Mortgage
. The Company
shall not subject any property or other assets to the lien of the Montana
Mortgage or the lien of the South Dakota Mortgage if such property or other
assets are subject to the lien of the other Mortgage.
(P)
Prohibition on Designating Class “A”
Mortgages or Permitting Qualified Lien Bonds to Exist
.
The Company shall not designate any Class “A” Mortgage under the South
Dakota Mortgage or permit any Qualified Lien Bonds to exist under the Montana
Mortgage.
(Q)
The covenants in this Section 6 of Article Four
and the covenants and provisions specified in Sections 3 (“Offer to Purchase
Upon Change of Control”), 4 (“Offer to Purchase by Application of Excess
Proceeds”), 5 (“Offers to Purchase—General”), and 8 (“Events of Default”) are
established pursuant to Sections 301(p) and 701(g) of the Original Indenture
and, subject to compliance with the conditions of Article 6 of the
Original Indenture, are “defeasible covenants” within the meaning of Section 603
of the Original Indenture; and the occurrence of an event specified in Section 8
(“Events of Default”) of this Article Four shall not be deemed to be an
Event of Default with respect to any Securities so “defeased” in accordance
with Section 603 of the Original Indenture.
SECTION 7.
Definitions.
Set forth below are certain defined terms
used in this Supplemental Indenture.
Reference is made to the Indenture for a full disclosure of all such
terms, as well as any other capitalized terms used herein for which no
definition is provided.
(A)
“Acquired Debt”
means, with respect to any specified
Person:
(1)
Indebtedness of any other Person existing
at the time such other Person is merged with or into or became a Subsidiary of
such specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with or
into, or becoming a Subsidiary of, such specified Person; and
(2)
Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
(B)
“Affiliate”
of any specified Person means any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this definition, “control,”
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise;
provided
that
beneficial ownership of 10% or more of the Voting Stock of a Person will be
deemed to be control.
30
For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.
(C)
“
Applicable Procedures”
means, with respect to any transfer or exchange of or for beneficial interests
in any Global Security, the rules and procedures of the Depositary, Euroclear
and Clearstream that apply to such transfer or exchange.
(D)
“Asset Sale”
means:
(1)
the sale, lease, conveyance or other
disposition of any assets or rights,
provided
that
the sale, conveyance or other disposition of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a whole will be
governed by Section 3 (“Offer to Purchase Upon Change of Control”) and/or Section 6(F)
(“Covenants—Merger, Consolidation or Sale of Assets”) and not by the provisions
of the Asset Sale covenant; and
(2)
the issuance of Equity Interests in any
of the Company’s Restricted Subsidiaries or the sale of Equity Interests in any
of its Restricted Subsidiaries.
Notwithstanding the
preceding, the following items will not be deemed to be Asset Sales:
(1)
the sale, transfer or lease of products
or services in the ordinary course of business or the disposition of damaged,
worn-out or obsolete assets in the ordinary course of business;
(2)
any single transaction or series of
related transactions for which the Company or its Restricted Subsidiaries
receive aggregate cash consideration of less than $8.0 million;
(3)
a transfer of assets between or among the
Company and its Restricted Subsidiaries;
(4)
an issuance of Equity Interests by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary of the
Company (including any Person that becomes a Restricted Subsidiary of the
Company in connection with such transaction);
(5)
sales or transfers of Receivables,
Receivables and Related Security, accounts or notes receivable under any
Receivables Purchase Document in connection with a Permitted Receivables
Transaction;
(6)
the licensing of intellectual property;
(7)
the sale or other disposition of cash or
Cash Equivalents;
(8)
(a) a disposition of assets (other than
any assets securing Senior Secured Debt) in connection with a foreclosure,
transfer or deed in lieu of foreclosure or other exercise of remedial action by
the Company or any Restricted Subsidiary or (b) dispositions of property
subject to a Permitted Lien that is transferred to the lienholder or its
designee in satisfaction or settlement of
31
such lienholder’s claim or a realization upon any Lien permitted
pursuant to the Indenture;
(9)
the sale, lease, conveyance or other
disposition for value of fuel or emission credits in the ordinary course of
business;
(10)
the transfer, sale or lease of Excluded
Assets; and
(11)
a Restricted Payment that is permitted by
Section 6(A) (“Covenants—Restricted Payments”) or a Permitted Investment.
(E)
“Asset Sale Offer”
has the meaning assigned to it in Section 4
of this Article.
(F)
“Attributable Debt”
in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be
extended. Such present value shall be calculated
using a discount rate equal to the rate of interest implicit in such
transaction, determined in accordance with GAAP;
provided,
however,
that if such sale and leaseback transaction results in a
Capital Lease Obligation, the amount of Indebtedness represented thereby will
be determined in accordance with the definition of “Capital Lease Obligation.”
(G)
“Beneficial Owner”
has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3)
of the Exchange Act), such “person” will be deemed to have beneficial ownership
of all securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially
Owned” have a corresponding meaning.
(H)
“Board of Directors”
means:
(1)
with respect to a corporation, the board
of directors of the corporation or any committee of such board of directors
duly authorized to act for the corporation;
(2)
with respect to a partnership, the Board
of Directors of the general partner of the partnership;
(3)
with respect to a limited liability
company, the managing member or members or any controlling committee of
managing members thereof; and
(4)
with respect to any other Person, the
board or committee of such Person serving a similar function.
(I)
“Broker-Dealer”
has the meaning set forth in the
Registration Rights Agreement.
32
(J)
“Capital Lease Obligation”
means, at the time any determination is
to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be prepaid by the lessee without payment of a
penalty.
(K)
“Capital Stock”
means:
(1)
in the case of a corporation, corporate
stock;
(2)
in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3)
in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited); and
(4)
any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
(L)
“Cash Equivalents”
means:
(1)
United States dollars;
(2)
securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality of the United States government (
provided
that the full faith and credit of the United States is pledged in support of
those securities) having maturities of not more than one year from the date of
acquisition;
(3)
certificates of deposit and eurodollar
time deposits with maturities of one year or less from the date of acquisition,
bankers’ acceptances with maturities not exceeding one year and overnight bank
deposits, in each case, with any domestic commercial bank having capital and
surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B” or
better;
(4)
repurchase obligations with a term of not
more than seven days for underlying securities of the types described in
clauses (2) and (3) above entered into with any financial institution meeting
the qualifications specified in clause (3) above;
(5)
commercial paper having one of the two
highest ratings obtainable from Moody’s or S&P and in each case maturing
within one year after the date of acquisition; and
(6)
money market funds at least 95% of the
assets of which constitute Cash Equivalents of the kinds described in clauses (1)
through (5) of this definition.
33
(M)
“Change of Control”
means the occurrence of any of the
following, in each case except in connection with the issuance of any Equity
Interests pursuant to the Plan of Reorganization or any secondary offering of
the Equity Interests issued pursuant to the Plan of Reorganization:
(1)
the direct or indirect sale, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially all of the
properties or assets of the Company and its Subsidiaries taken as a whole to
any “person” (as that term is used in Section 13(d)(3) of the Exchange
Act, including any “group” with the meaning of the Exchange Act) other than to
the Company, any employee benefit plan of the Company or any of its Restricted
Subsidiaries, or any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of such plan;
(2)
the adoption of a plan relating to the
liquidation or dissolution of the Company;
(3)
the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of
which is that any “person” (as defined above) becomes the Beneficial Owner,
directly or indirectly, of more than 40% of the Voting Stock of the Company,
measured by voting power rather than number of shares; or
(4)
the first day on which a majority of the
members of the Board of Directors of the Company are not Continuing Directors.
(N)
“Change of Control Offer”
has the meaning assigned to it in Article Four,
Section 3(A).
(O)
“Change of Control Payment”
has the meaning assigned to it in Article Four,
Section 3(A).
(P)
“Change of Control Payment Date”
has the meaning assigned to it in Article Four,
Section 3(B)(2).
(Q)
“Clearstream”
means Clearstream Banking, société
anonyme.
(R)
“Colstrip IV”
means all assets and property of any
kind relating to the Company’s interest in Unit 4 of the Colstrip generating
project in the vicinity of Colstrip, Montana, including real property
interests, contracts, transferable permits and other tangible and intangible
assets relating to the forgoing. The
Colstrip 4 Interest includes the Company’s leasehold interest in a 30%
undivided interest in Unit 4 and a 15% undivided interest in the common
facilities relating thereto which was sold and leased back pursuant to a lease
financing transaction, certain retained assets which were not part of the lease
financing, fee interests in the plant site property and related property, the
related interest in the Ownership and Operation Agreement related to Units 3
and 4, and contracts for the sale of power from Unit 4.
34
(S)
“Consolidated Cash Flow”
means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period plus, without duplication:
(1)
an amount equal to any extraordinary loss
plus any net loss realized by such Person or any of its Restricted Subsidiaries
in connection with (a) an Asset Sale, (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or (c) the extinguishment of
any Indebtedness of such Person or any of its Restricted Subsidiaries, in each
case, to the extent such losses were deducted in computing such Consolidated
Net Income;
plus
(2)
provision for taxes based on income or
profits of such Person and its Restricted Subsidiaries for such period, to the
extent that such provision for taxes was deducted in computing such
Consolidated Net Income;
plus
(3)
the Fixed Charges of such Person and its
Restricted Subsidiaries for such period, to the extent that any such expense was
deducted in computing such Consolidated Net Income;
plus
(4)
depreciation, depletion, amortization
(including amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and
other non-cash charges and expenses (excluding any such non-cash expense to the
extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Restricted Subsidiaries for such period to
the extent that such depreciation, depletion, amortization and other non-cash
expenses were deducted in computing such Consolidated Net Income;
plus
(5)
any non-cash compensation charges,
including any such charges arising from stock options, restricted stock grants
or other equity incentive programs to the extent that such charges were
deducted in computing such Consolidated Net Income;
minus
(6)
non-cash items increasing such
Consolidated Net Income for such period, other than the accrual of revenue or
the reversal of an accrued expense, in each case, in the ordinary course of
business,
in each case, on a
consolidated basis and determined in accordance with GAAP.
(T)
“Consolidated Net Income”
means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP;
provided
that:
(1)
the Net Income (but not loss) of any
Person that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting will be included only to the extent of the amount
of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary of the Person;
35
(2)
the Net Income of any Restricted
Subsidiary will be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its stockholders;
(3)
the cumulative effect of a change in
accounting principles will be excluded;
(4)
cash received or paid during such period
related to mark-to-market activities will be included, but all non-cash
mark-to-market earnings or losses shall be excluded; and
(5)
all extraordinary, unusual or
non-recurring items of loss or expense and all extraordinary, unusual or
non-recurring items of gain or revenue, in each case relating to the case
commenced by the Company by its filing, on September 14, 2003, of a
voluntary petition for relief under Chapter 11 of the United States
Bankruptcy Code with the United States Bankruptcy Court for the District of
Delaware, shall be excluded.
(U)
“Continuing Directors”
means, as of any date of determination,
any member of the Board of Directors of the Company who:
(1)
was a member of such Board of Directors
on the original issue date of the Securities of Series No. 1 or was designated
to the Board of Directors pursuant to the Plan of Reorganization; or
(2)
was nominated for election or elected to
such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election.
(V)
“
Cornerstone
”
means CornerNorth LLC and its Subsidiaries.
(W)
“Cornerstone Note”
means the note receivable related to
previous intercompany obligations and payments on letters of credit and credit
facility indebtedness on behalf of Cornerstone and any securities received in
exchange therefor in connection with the Chapter 11 proceeding of Cornerstone
Partners LP.
(X)
“Credit Facilities”
means one or more debt facilities or
commercial paper facilities, in each case with banks or other institutional
lenders providing for revolving credit loans, term loans, letters of credit or Permitted
Receivables Transactions, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced (whether upon or after termination or
otherwise, including by means of sale of debt securities to institutional
investors) in whole or in part from time to time, and includes any securities
issued in order to secure any amounts outstanding under a Credit Facility from
time to time;
provided
that the obligation of
the Company to make any payment on any such securities shall be:
36
(1)
no greater than the amount required to be
paid under such Credit Facility that is secured by such payment obligation;
(2)
payable no earlier than such amount is
required to be paid under such Credit Facility; and
(3)
deemed to have been paid or otherwise
satisfied and discharged to the extent that the Company has paid such amount
under such Credit Facility;
provided, further,
that any
amounts the Company is obligated to pay under such securities will not be
included for purposes of determining the aggregate amount outstanding under
Credit Facilities that is permitted under Section 6(B)(2)(a) (“Covenants—Incurrence
of Indebtedness and Issuance of Preferred Stock”).
(Y)
“Default”
means any event that is, or with the
passage of time or the giving of notice or both would be, an Event of Default
as defined in the Indenture.
(Z)
“Disqualified Stock”
means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder of the Capital
Stock), or upon the happening of any event (other than as a result of an
exercise of an optional redemption right by an owner), matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder of the Capital Stock, in whole or in
part, on or prior to the date that is 91 days after the date on which the
Securities of Series No. 1 or Series No. 2 mature. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control or an
asset sale will not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem any such Capital
Stock pursuant to such provisions unless such repurchase or redemption complies
with Section 6(A) (“Covenants—Restricted Payments”).
(AA)
“Equity Interests”
means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
(BB)
“Equity Offering”
means an offer and sale of Equity
Interests of the Company pursuant to (1) a public offering or (2) a private
placement.
(CC)
“Event of Default”
means an Event of Default as defined in
the Indenture.
(DD)
“Excess Cash Flow”
means, with respect to any specified
Person for any period, the Consolidated Cash Flow of such Person for such
period,
minus
(1)
the items delineated in paragraphs (2)
and (3) of the definition of Consolidated Cash Flow, to the extent such items
were actually paid in cash;
minus
(2)
capital expenditures of such Person and
its Restricted Subsidiaries for such period,
37
in each case, on a consolidated
basis, determined in accordance with GAAP.
(EE)
“Excluded Assets”
means assets or properties of, and
Equity Interests in the Excluded Subsidiaries, Colstrip IV, Montana Megawatts
and the Cornerstone Note.
(FF)
Excluded Project Subsidiary
” means (1) any Subsidiary of the Company
engaged in the development, acquisition, design, engineering, construction,
operation, ownership, servicing or management of the Southwest transmission
project or (2) any subsidiary of the Company that purchases, acquires, operates
and owns Colstrip IV and (3) Montana Megawatts.
(GG)
“Existing Indebtedness”
means all Indebtedness of the Company
and its Subsidiaries (other than Indebtedness under a Credit Facility) in
existence on the original issue date of the Securities of Series No. 1, until
such amounts are repaid.
(HH)
“Excluded Subsidiary”
means Blue Dot Services Inc. and its
subsidiaries, Netexit, Inc. (f/k/a Expanets, Inc.) and its subsidiaries, Cornerstone
and its subsidiaries or an Excluded Project Subsidiary.
(II)
“Fair Market Value”
means the value that would be paid by a
willing buyer to an unaffiliated willing seller in a transaction not involving
distress or necessity of either party, (1) determined in good faith by an
officer of NorthWestern and evidenced by an Officers’ Certificate delivered to
the trustee, if such value is less than or equal to $35.0 million, or (2) determined
in good faith by the Board of Directors of the Company and evidenced by a
resolution delivered to the trustee, if such value is greater than $35.0
million,
provided however
, that for the purposes
of the covenants described under section 6(G) (“Covenants- Transactions
with Affiliates,” and except as expressly provided in the indenture with
respect thereto) such value is to be determined solely by the Board of
Directors.
(JJ)
“Fixed Charges”
means, with respect to any specified
Person for any period, the sum, without duplication, of:
(1)
the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or
accrued, including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred
in respect of letter of credit or bankers’ acceptance financings, and net of
the effect of all payments made or received pursuant to Hedging Obligations in
respect of interest rates;
plus
(2)
the consolidated interest of such Person
and its Restricted Subsidiaries that was capitalized during such period;
plus
(3)
any interest expense on Indebtedness of
another Person that is guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or one of its
Restricted Subsidiaries, whether or not such guarantee or Lien is called upon;
plus
38
(4)
the product of (a) all dividends, whether
paid or accrued and whether or not in cash, on any series of preferred stock of
such Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of the Company (other than
Disqualified Stock) or to the Company or a Restricted Subsidiary of the
Company, times (b) (i) in the case of trust preferred dividend payments, one
and (ii) in the case of all other preferred dividend payments, a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP;
minus
(5)
the upfront costs of Hedging Obligations
paid prior to the date of the Indenture.
(KK)
“Fixed Charge Coverage Ratio”
means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
and its Restricted Subsidiaries for such period to the Fixed Charges of such
Person and its Restricted Subsidiaries for such period. In the event that the specified Person or any
of its Restricted Subsidiaries incurs, assumes, guarantees, repays,
repurchases, redeems, defeases or otherwise discharges any Indebtedness (other
than ordinary working capital borrowings) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated and on or prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio is
made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be
calculated giving
pro forma
effect to such
incurrence, assumption, guarantee, repayment, repurchase, redemption,
defeasance or other discharge of Indebtedness, or such issuance, repurchase,
redemption, defeasance or other discharge of preferred stock, and the use of
the proceeds therefrom as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In addition, for purposes of
calculating the Fixed Charge Coverage Ratio:
(1)
acquisitions that have been made by the
specified Person or any of its Restricted Subsidiaries, including through
mergers, consolidations or otherwise or any Person or any of its Restricted
Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries
and including any related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period
or subsequent to such reference period and on or prior to the Calculation Date
will be given
pro forma
effect (in accordance
with Regulation S-X under the Securities Act, but including all
pro forma
adjustments permissible in accordance with the
last paragraph of this definition) as if they had occurred on the first day of
the four-quarter reference period and Consolidated Cash Flow for such reference
period shall be calculated on the same
pro forma
basis ; and
(2)
the Consolidated Cash Flow attributable
to discontinued operations, as determined in accordance with GAAP, and
operations or businesses (and ownership interests therein) disposed of prior to
the Calculation Date, will be excluded; and
39
(3)
the Fixed Charges attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses (and ownership interests therein) disposed of prior to the
Calculation Date, will be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the specified
Person or any of its Restricted Subsidiaries following the Calculation Date;
and
(4)
any Person that is a Restricted
Subsidiary on the Calculation Date will be deemed to have been a Restricted
Subsidiary at all times during such four-quarter period;
(5)
any Person that is not a Restricted
Subsidiary on the Calculation Date will be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
(6)
if any Indebtedness bears a floating rate
of interest, the interest expense on such Indebtedness will be calculated as if
the rate in effect on the Calculation Date had been the applicable rate for the
entire period (taking into account any Hedging Obligation applicable to such
Indebtedness if such Hedging Obligation has a remaining term at the Calculation
Date in excess of 12 months).
For purposes of this
definition, whenever pro forma effect is to be given to an acquisition or
investment, the amount of income or earnings relating thereto and the amount of
Fixed Charges associated with any Indebtedness incurred in connection
therewith, the
pro forma
calculations shall be
determined in good faith by a responsible financial or accounting officer of
the Company. Any such
pro forma
calculations may include operating expense
reductions for such period resulting from the acquisition which is being given
pro forma
effect that would be permitted pursuant to Article 11
of Regulation S-X under the Securities Act.
(LL)
“GAAP”
means generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect from time
to time.
(MM)
“Guarantee”
means a guarantee other than by
endorsement of negotiable instruments for collection in the ordinary course of
business, direct or indirect, in any manner, including, without limitation, by
way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness (whether
arising by virtue of partnership arrangements, or by agreements to keep-well,
to purchase assets, goods, securities or services, to take or pay or to
maintain financial statement conditions or otherwise).
(NN)
“Hedging Obligations”
means, with respect to any specified
Person, the obligations of such Person incurred in the normal course of
business and not for speculative purposes under:
(1)
interest rate swap agreements (whether
from fixed to floating or floating to fixed), interest rate cap agreements,
interest rate collar agreements or
40
other similar agreements, and other agreements designed to manage
interest rates or interest rate risk;
(2)
foreign exchange contracts or currency
protection agreements, in each case entered into with one of more financial
institutions; and other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange rates; and
(3)
any commodity futures contract, commodity
option or other similar agreement or arrangement, in each case designed to
protect against fluctuations in the price of commodities used by that entity at
the time; and other agreements or arrangements designed to protect such Person
against fluctuation in commodity prices.
(OO)
“Indebtedness”
means, with respect to any specified Person,
any indebtedness of such Person (excluding accrued expenses and trade
payables), whether or not contingent:
(1)
in respect of borrowed money;
(2)
evidenced by bonds, notes, debentures or
similar instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3)
in respect of banker’s acceptances;
(4)
representing Capital Lease Obligations;
(5)
representing the balance deferred and
unpaid of the purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable; or
(6)
representing the net amount owing under
any Hedging Obligations,
if and to the extent any of
the preceding items (other than letters of credit and Hedging Obligations)
would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In
addition, the term “Indebtedness” includes all Indebtedness of others secured
by a Lien on any asset of the specified Person (whether or not such
Indebtedness is assumed by the specified Person) and, to the extent not
otherwise included, the Guarantee by the specified Person of any indebtedness
of any other Person.
The amount of any
Indebtedness outstanding as of any date will be:
(1)
the accreted value of the Indebtedness,
in the case of any Indebtedness issued with original issue discount;
(2)
the principal amount of the Indebtedness,
in the case of any other Indebtedness; and
41
(3)
in respect of Indebtedness of another
Person that is secured by a Lien on the assets of the specified Person (and
which the specified Person is not directly or indirectly liable to pay as guarantor
or otherwise), the lesser of:
(a)
the Fair Market
Value of such asset at the date of determination, and
(b)
the amount of
the Indebtedness of the other Person.
(PP)
“Investment Grade Rating”
means a rating equal to or higher than
Baa3 (or the equivalent) by Moody’s or BBB– (or the equivalent) by S&P.
(QQ)
“Investments”
means, with respect to any Person, all
direct or indirect investments by such Person in other Persons (including
Affiliates) in the forms of loans (including Guarantees or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be classified
as investments on a balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or
indirect Subsidiary of the Company such that, after giving effect to any such
sale or disposition, such Person is no longer a Subsidiary of the Company, the
Company will be deemed to have made an Investment on the date of any such sale
or disposition equal to the Fair Market Value of the Equity Interests of such Subsidiary
not sold or disposed of in an amount determined as provided in the final
paragraph of Section 6(A) (“Covenants—Restricted Payments”). The acquisition by the Company or any
Subsidiary of the Company of a Person that holds an Investment in a third Person
will be deemed to be an Investment by the Company or such Subsidiary in such
third Person in an amount equal to the Fair Market Value of the Investment held
by the acquired Person in such third Person in an amount determined as provided
in the final paragraph Section 6(A) (“Covenants—Restricted Payments”). Except as otherwise provided in the
Indenture, the amount of an Investment will be its Fair Market Value at the
time the Investment is made and without giving effect to subsequent changes in
value.
(RR)
“Lien”
means, with respect to any asset, any
mortgage, deed of trust, pledge, security interest, encumbrance, easement,
lease, reservation, restriction, servitude, charge or similar right and any
other lien of any kind, whether or not filed, recorded or otherwise perfected
under applicable law, including, without limitation, any conditional sale or
other title retention agreement, any lease in the nature thereof and any option
or other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction.
(SS)
“Montana Megawatts”
means NorthWestern Generation I, LLC,
and all assets owned directly or indirectly by it, including, without
limitation all of the equity interests in Montana Megawatts I, LLC and certain
other permits, assets and contractual rights to be used in the operation of the
Montana Megawatts facility, a planned 260-megawatt, natural gas-fired,
combined-cycle electric generation facility under construction near Great
Falls, Montana.
42
(TT)
“Moody’s”
means Moody’s Investors Service, Inc. or
any successor to the rating agency business thereof.
(UU)
“Net Income”
means, with respect to any specified
Person, the net income (loss) of such Person, determined in accordance with
GAAP and before any reduction in respect of preferred stock dividends or
accretion, excluding, however:
(1)
any gain (but not loss), together with
any related provision for taxes on such gain (but not loss), realized in
connection with: (a) any Asset Sale
(without giving effect to the threshold provided for in the definition
thereof); or (b) the disposition of any securities by such Person or any of its
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Subsidiaries; and
(2)
any extraordinary gain (but not loss),
together with any related provision for taxes on such extraordinary gain (but
not loss).
(VV)
“
Net Proceeds
”
means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale, including, without limitation, legal, accounting
and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result of the Asset Sale, taxes paid or payable as a result of
the Asset Sale, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements (but not taking into
account any net operating losses available to the Company or any of its
Restricted Subsidiaries), the net present value of any amounts required to be
returned to rate payers in the form of rate reductions or as otherwise required
by any Governmental Authority, and amounts required to be applied to the
repayment of Indebtedness and any reserve for adjustment in respect of the sale
price of such asset or assets established in accordance with GAAP.
(WW)
“Non-Recourse Debt”
means Indebtedness:
(1)
as to which neither the Company nor any
of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender;
(2)
no default with respect to which would
permit upon notice, lapse of time or both any holder of any other Indebtedness
(other than the Securities of Series No. 1 or Series No. 2 or the Senior
Secured Debt) of the Company or any of its Restricted Subsidiaries to declare a
default on such other Indebtedness or cause the payment of the Indebtedness to
be accelerated or payable prior to its stated maturity; and
(3)
in the case of any such Indebtedness
incurred after the original issue date of the Securities of Series No. 1, as to
which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries (other than any Excluded Assets).
43
(XX)
“Obligations”
means any principal, interest,
penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
(YY)
“
Originators
”
means NorthWestern and/or any of its Restricted Subsidiaries in their respective
capacities as parties to any Receivables Purchase Documents, as sellers or
transferors of any Receivables and Related Security in connection with a
Permitted Receivables Transaction.
(ZZ)
“Permitted Business”
means any business substantially similar
to the lines of business conducted by the Company and its Restricted
Subsidiaries as of the date of the indenture or any business or activity that
is reasonably related, ancillary or complementary thereto or a reasonable
extension, development or expansion thereof.
(AAA)
“
Permitted
Investments
” means:
(1)
any Investment in the Company or in a
Restricted Subsidiary of the Company;
(2)
any Investment in Cash Equivalents;
(3)
any Investment by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such
Investment:
(a)
such Person
becomes a Restricted Subsidiary of the Company; or
(b)
such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary of the Company;
(4)
any Investment made as a result of the
receipt of non-cash consideration from an Asset Sale that was made pursuant to
and in compliance with Section 4 of this Article (“Offer to Purchase
by Application of Excess Proceeds”) and Section 6(E) of this Article (“Covenants—Asset
Sales”);
(5)
any Investments made in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of the Company;
(6)
any Investments received in compromise or
resolution of (a) obligations of trade creditors or customers that were
incurred in the ordinary course of business of the Company or any of its Restricted
Subsidiaries, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or
customer; or (b) litigation, arbitration or other disputes with Persons who are
not Affiliates;
(7)
Investments represented by Hedging
Obligations;
(8)
Investments by the Company or a
Restricted Subsidiary in a Receivables SPV or any Investment by a Receivables SPV
in any other Person, in each case, in connection with a Permitted Receivables
Transaction;
44
(9)
any Investment, including Investments in
Unrestricted Subsidiaries, existing on the date of the Indenture;
(10)
Investments in the form of, or pursuant
to, operating agreements, joint ventures, partnership agreements, working
interests, royalty interests, mineral leases, processing agreements, farm-out
agreements, contracts for the sale, transportation or exchange of oil and
natural gas, unitization agreements, pooling agreements, area of mutual
interest agreements, production sharing agreements or other similar or
customary agreements, transactions, properties, interests or arrangements, and
Investments and expenditures in connection therewith or pursuant thereto, in
each case, made or entered into in the ordinary course of business;
(11)
Investments in Affiliates of the Company
resulting from the drawings under, or renewals or extensions of surety bonds,
guarantees, or performance bonds supporting obligations of such Affiliates, and
Investments in Subsidiaries of the Company to cash collateralize obligations
supported by such letters of credit, bonds or guarantees if they expire or are
cancelled undrawn to be made by the Company or any of its Subsidiaries in order
to avoid a default pursuant to contracts or agreements;
(12)
issuances of letters of credit for
working capital requirements and general corporate purposes of the Excluded
Subsidiaries, Montana Megawatts, and Colstrip IV in an aggregate principal
amount at any one time outstanding not to exceed $60.0 million;
(13)
loans or advances to employees made in
the ordinary employees made in the ordinary course of business in an aggregate
principal amount not to exceed $5.0 million at any one time outstanding;
(14)
repurchases of the Securities of Series
No. 1 and Series No. 2 or other Senior Secured Debt;
(15)
negotiable instruments held for deposits
or collection in the ordinary course of business;
(16)
receivables owing to the Company or any
Restricted Subsidiary of the Company created or acquired in the ordinary course
of business and payable or dischargeable in accordance with customary trade terms;
provided
,
however
,
that such trade terms may include such concessionary trade terms as the Company
or any such Restricted Subsidiary of the Company deems reasonable under the
circumstances;
(17)
payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that and that are made in the
ordinary course of business;
(18)
Investments resulting from the
acquisition of a Person that at the time of such acquisition held instruments
constituting Investments that were not acquired in contemplation of the
acquisition of such Person;
45
(19)
Investments in the Excluded Assets;
(20)
any Investment made since the date of the
indenture in Persons engaged primarily in Permitted Businesses, if after giving
effect to such Investment, such Person is or will become a Restricted
Subsidiary of the Company;
provided
that
the aggregate Fair Market Value of Investments made pursuant to this clause (20)
(measured on the date each such Investment was made and without giving effect
to subsequent change in value), when taken together with all other Investments
made pursuant to this clause (20) that are at the time outstanding, does not
exceed 10% of the consolidated assets of the Company and its Restricted
Subsidiaries as of the most recent fiscal quarter end for which financial
statements are publicly available; and
(21)
other Investments made since the date of
the Indenture in any Person that is not also a Restricted Subsidiary of the
Company having an aggregate Fair Market Value (measured on the date each such
Investment was made and without giving effect to subsequent changes in value),
when taken together with all other Investments made pursuant to this clause (21),
that are at the time outstanding, not to exceed $35.0 million;
provided, however
, that if any Investment pursuant to this
clause (21) is made in any Person that is not a Restricted Subsidiary of the
Company at the date of the making of the Investment and such Person becomes a
Restricted Subsidiary after such date, such Investment shall thereafter be
deemed to have been made pursuant to clause (1) above, and shall cease to have
been made pursuant to this clause (21).
(BBB)
“
Permitted Liens
”
means:
(1)
Liens securing any Senior Secured Debt,
including the notes and any Indebtedness under a Credit Facility that was
permitted by the terms of the Indenture to be incurred, and all Obligations and
Hedging Obligations relating to such Indebtedness;
(2)
Liens on property of a Person existing at
the time such Person is merged with or into or consolidated with the Company or
any Restricted Subsidiary of the Company;
provided
that
such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Company or the Restricted Subsidiary;
(3)
Liens on property (including Capital
Stock) existing at the time of acquisition of the property by the Company or
any Restricted Subsidiary of the Company;
provided
that
such Liens were in existence prior to such acquisition and not incurred in
contemplation of such acquisition;
(4)
Liens imposed by law, such as workmen’s
carriers’ and mechanics’ liens, or to secure the performance of statutory or
regulatory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature, in each case, incurred in the ordinary course of
business;
(5)
Liens to secure Indebtedness (including
Capital Lease Obligations) permitted by Section 6(B)(2)(d) (under the
heading “Incurrence of
46
Indebtedness and Issuance of Preferred Stock”) covering only the assets
acquired with such Indebtedness;
(6)
Liens existing on the original issue date
of the Securities of Series No. 1 (including the Liens of the Mortgages and the
Lien of the Indenture);
(7)
Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded;
provided
that
any reserve or other appropriate provision as is required in conformity with
GAAP has been made therefor;
(8)
survey exceptions, easements or
reservations of, or rights of others for, licenses, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real property that were not
incurred in connection with the Indebtedness and that do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person;
(9)
Liens incurred or deposits made in the
ordinary course of business in connection with workers’ compensation,
unemployment insurance and other types of social security;
(10)
Liens encumbering deposits made to secure
obligations arising from statutory, regulatory, contractual or warranty requirements
of the Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(11)
leases and subleases granted to others as
lessee or sublessee that do not materially interfere with the ordinary course
of business of the Company and its Restricted Subsidiaries;
(12)
Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary, including Liens to secure
obligations with respect to (i) contracts (other than for Indebtedness) for
commercial and trading activities in the ordinary course of business for the
purchase, transmission, distribution, sale, lease or hedge of any energy
related commodity or service, (ii) agreements relating to Hedging Obligations
or netting agreements representing commodity price contracts or derivatives or
(iii) agreements relating to Hedging Obligations entered into with qualified
counterparties representing interest rate swaps or derivatives;
provided, however,
that such Liens do not exceed $20.0 million in
the aggregate at any one time outstanding;
(13)
Liens arising from Uniform Commercial
Code financing statements filed on a precautionary basis in respect of
operating leases intended by the parties in good faith to be true leases (other
than any such leases entered into in violation of the Indenture);
(14)
Liens in favor of the Company or on
Excluded Assets;
47
(15)
Liens to secure Indebtedness permitted by
clauses (g), (n) or (r) of Section 6(B)(2) of this Article (“Incurrence
of Indebtedness and Issuance of Preferred Stock”);
(16)
Liens securing Permitted Refinancing
Indebtedness;
provided
that any such Lien is
limited to all or part of the same property or assets (plus improvements,
accessions, proceeds or dividends or distributions in respect thereof) that
secured (or, under the written arrangements under which the original Lien
arose, could secure) the Indebtedness being refinanced or is in respect of
property that is the security for a Permitted Lien hereunder;
(17)
Liens on Receivables transferred to a
Receivables SPV or on assets of a Receivables SPV, in either case, incurred in
connection with a Permitted Receivables Transaction; and
(18)
Liens, including pledges, rights of
offset and bankers’ liens, on deposit accounts, instruments, investment
accounts and investment property (including cash, cash equivalents and
marketable securities) from time to time maintained with or held by any
financial and/or depository institutions, in each case solely to secure any and
all obligations now or hereafter existing of the Company or any of its
Subsidiaries in connection with any deposit account, investment account or cash
management service (including ACH, Fedwire, CHIPS, concentration and zero
balance accounts, and controlled disbursement, lockbox or restricted accounts)
now or hereafter provided by any financial and/or depository institutions to or
for the benefit of the Company or any of its Restricted Subsidiaries.
(CCC)
“Permitted Refinancing
Indebtedness”
means any Indebtedness of the Company or any of its Restricted Subsidiaries
issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease, refund or discharge other Indebtedness of
the Company or any of its Restricted Subsidiaries (other than intercompany
Indebtedness and Non-Recourse Debt of any Excluded Project Subsidiary);
provided
that:
(1)
the principal amount (or accreted value,
if applicable) of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the Indebtedness
extended, refinanced, renewed, replaced, defeased, refunded or discharged (plus
all accrued and unpaid interest on the Indebtedness and the amount of all
expenses and premiums incurred in connection therewith);
(2)
such Permitted Refinancing Indebtedness
has a final maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased, refunded or discharged;
(3)
if the Indebtedness being extended,
refinanced, renewed, replaced, defeased, discharged or refunded is Subordinated
Indebtedness, such Permitted Refinancing Indebtedness is Subordinated
Indebtedness that is subordinated in right of payment to, the Securities of
Series No. 1 or Series No. 2
48
on terms at least as favorable to the holders of Securities of Series
No. 1 or Series No. 2 as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased, refunded
or discharged; and
(4)
such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
(DDD)
“
Permitted Receivables
Transaction
” means (i) a sale or other transfer by an
Originator to a Receivables SPV or any other Person of Receivables and Related
Security for fair market value and without recourse (except for limited
recourse typical of such structured finance transactions), and/or (ii) a
sale or other transfer by an Originator or a Receivables SPV to
(a) purchasers of or other investors in such Receivables and Related
Security or (b) any other Person (including a Receivables SPV) in a
transaction in which purchasers or other investors purchase or are otherwise
transferred such Receivables and Related Security in each case pursuant to and
in accordance with the terms of the Receivables Purchase Documents;
provided
, that Receivables Facility Attributed Indebtedness
incurred in connection with the Receivables Purchase Documents does not exceed
$70,000,000 in the aggregate at any time.
(EEE)
“
Person
” means
any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.
(FFF)
“Plan of Reorganization”
means the Company’s Second Amended and
Restated Plan of Reorganization, dated August 18, 2004, under Chapter 11
of the Bankruptcy Code (as amended from time to time).
(GGG)
“Rating Agencies”
means S&P and Moody’s, or if S&P
or Moody’s or both shall not make a rating on the Securities of Series No. 1 or
Series No. 2 publicly available, a nationally recognized statistical rating
agency or agencies, as the case may be, selected by the Company (as certified
by a resolution of its Board of Directors) which shall be substituted for S&P
or Moody’s or both, as the case may be.
(HHH)
“
Receivable(s)
”
means all of the applicable Originator’s or Receivables SPV’s presently
existing and hereafter arising or acquired accounts, accounts receivable, and
all present and future rights of such Originator or Receivables SPV to payment
for goods sold or leased or for services rendered (except those evidenced by
instruments or chattel paper), whether or not they have been earned by
performance, and all rights in any merchandise or goods which any of the same
may represent, and all rights, title, security and guaranties with respect to
each of the foregoing, including, without limitation, any right of stoppage in
transit.
(III)
“
Receivables and Related
Security
” means the Receivables and the related security and
collections with respect thereto which are sold or transferred by any
Originator or Receivables SPV in connection with any Permitted Receivables
Transaction.
(JJJ)
“Receivables Facility Attributed
Indebtedness”
means
the amount of obligations outstanding under a receivables purchase facility on
any date of determination
49
that would be characterized as principal if such
facility were structured as a secured lending transaction rather than as a
purchase.
(KKK)
“
Receivables Purchase
Documents
” means any series of receivables purchase or sale
agreements generally consistent with terms contained in comparable structured
finance transactions pursuant to which an Originator or Originators sell or
transfer to Receivables SPVs all of their respective right, title and interest
in and to certain Receivables and Related Security for further sale or transfer
to other purchasers of or investors in such assets (and the other documents,
instruments and agreements executed in connection therewith), as any such
agreements may be amended, restated, supplemented or otherwise modified from
time to time, or any replacement or substitution therefor.
(LLL)
“
Receivables SPV
”
means any special purpose entity established for the purpose of purchasing
receivables in connection with a receivables securitization transaction
permitted under the terms of the indenture.
(MMM)
“Restricted Investment”
means an Investment other than a
Permitted Investment.
(NNN)
“Restricted Subsidiary”
of a Person means any Subsidiary of the specified
Person that is not an Unrestricted Subsidiary.
(OOO)
“
Senior Secured Debt
”
means any of the Company’s Indebtedness under the Montana Mortgage, the South
Dakota Mortgage, the Indenture, and any other Indebtedness to the extent such
Indebtedness is secured by any of the foregoing, including Indebtedness under
the Credit Facilities.
(PPP)
“S&P”
means Standard & Poor’s Rating
Group, Inc., or any successor to the rating agency business thereof.
(QQQ)
“Stated Maturity”
means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
(RRR)
“Subordinated Indebtedness”
means any Indebtedness of the Company or
any of its Restricted Subsidiaries that is contractually subordinated to the
Securities of Series No. 1 or Series No. 2, other than any such Indebtedness of
a Restricted Subsidiary that is owed to the Company or a Restricted Subsidiary.
(SSS)
“Subsidiary”
means, with respect to any specified
Person:
(1)
any corporation, association or other
business entity of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or
50
one or more of the other Subsidiaries of that Person (or a combination
thereof); and
(2)
any partnership (a) the sole general
partner or the managing general partner of which is such Person or a Subsidiary
of such Person or (b) the only general partners of which are that Person or one
or more Subsidiaries of that Person (or any combination thereof).
(TTT)
“Unrestricted Subsidiary”
means any Subsidiary of the Company that
is designated by the Board of Directors as an Unrestricted Subsidiary pursuant
to a Board Resolution, but only to the extent that such Subsidiary:
(1)
has no Indebtedness other than
Non-Recourse Debt;
(2)
except as permitted pursuant to the
covenant described in Section 6(G) above (“Covenants—Transactions with
Affiliates”) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company;
(3)
is a Person with respect to which neither
the Company nor any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to maintain
or preserve such Person’s financial condition or to cause such Person to
achieve any specified levels of operating results; and
(4)
has not guaranteed or otherwise directly
or indirectly provided credit support for any Indebtedness of the Company or
any of its Restricted Subsidiaries.
Notwithstanding the foregoing, the Excluded
Subsidiaries shall be deemed to be Unrestricted Subsidiaries, unless the
Company designates one or more of them as Restricted Subsidiaries in accordance
with the terms set forth in the indenture.
Except for the Excluded Subsidiaries, any designation
of a Subsidiary of the Company as an Unrestricted Subsidiary after the date of
the Indenture will be evidenced to the trustee by filing with the trustee a
certified copy of the Board Resolution giving effect to such designation and an
officer’s certificate certifying that such designation complied with the
preceding conditions and was permitted by the covenant described in Section 6(A)
above (“Covenants—Restricted Payments”).
Except for the Excluded Subsidiaries, if at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for
purposes of the Indenture and any Indebtedness of such Subsidiary will be
deemed to be incurred by a Restricted Subsidiary of the Company as of such date
and, if such Indebtedness is not permitted to be incurred as of such date under
Section 6(B) (“Covenants—Incurrence of Indebtedness and Issuance of
Preferred Stock”), the Company will be in default of such covenant.
51
(UUU)
“Voting Stock”
of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
(VVV)
“Weighted Average Life to
Maturity”
means,
when applied to any Indebtedness at any date, the number of years obtained by
dividing:
(1)
the sum of the products obtained by
multiplying (a) the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal, including payment at
final maturity, in respect of the Indebtedness, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and
the making of such payment; by
(2)
the then outstanding principal amount of
such Indebtedness.
(WWW)
"Wholly-Owned
Subsidiary”
of any specified Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors’ qualifying shares or foreign national qualifying
Capital Stock or other ownership interests) will at the time be owned by such
Person or by one or more wholly-owned Restricted Subsidiaries of such Person.
SECTION 8.
Events of Default
So long as any Securities
of Series No. 1 or Series No. 2 shall remain Outstanding, the occurrence of any
of the following events shall be an additional Event of Default under the
Indenture:
(A)
a default under any instrument or
instruments under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries having an outstanding principal amount of $50 million
or more, if such default:
(1)
results from failure to pay principal of,
or interest or premium, if any, on such indebtedness when due or if applicable,
prior to the expiration of the grace period provided in such Indebtedness (a “Payment
Default”); or
(2)
results in the acceleration of such
Indebtedness prior to its stated maturity;
provided
that, in each case, if such default shall be remedied or cured by the Company
or such Restricted Subsidiary or waived by the holder of such
Indebtedness, in each case before acceleration of the Securities of such
series, then the Event of Default hereunder caused by reason thereof shall be
deemed likewise to have been remedied, cured or waived without further action
on the part of the Trustee, any Holder of Securities of such Series or any
other Person; or
(B)
any final judgment or order for the
payment of money shall be rendered by a court or courts of competent
jurisdiction against the Company or any Restricted Subsidiary of the Company,
in an amount in excess of $50 million (excluding therefrom any amount covered
by any third-party indemnity or insurance as to which the indemnitor or the
insurer, as the case may be, has
acknowledged in writing its coverage obligation), and such judgment or order
shall not be paid or discharged for a period of 60 consecutive
52
days, during which period a stay of enforcement of
such final judgment or order, or an order vacating such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect.
SECTION 9.
Book-entry; Delivery and Form
.
(A)
Form and Dating
.
The Securities of Series
No. 1 and Series No. 2 and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A or Exhibit D hereto, as applicable. Such Securities may have notations, legends
or endorsements required by law, stock exchange rule or usage. Each such Security shall be dated the date of
its authentication. Such Securities
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions
contained in the Securities of Series No. 1 and Series No. 2 shall constitute,
and are hereby expressly made, a part of this Supplemental Indenture, and the
Company, by its execution and delivery of this Supplemental Indenture,
expressly agrees to such terms and provisions and to be bound thereby. However, to the extent any provision of any
Security of Series No. 1 or Series No. 2 conflicts with the express provisions
of this Supplemental Indenture or the Indenture, the provisions of this
Supplemental Indenture or the Indenture, as applicable, shall govern and be
controlling.
Securities of Series No.
1 and Series No. 2 issued in global form shall be substantially in the form of
Exhibits A or D attached hereto, as applicable (including the Global Security
Legend and the “Schedule of Exchanges in the Global Security” attached
thereto). Securities of Series No. 1 and
Series No. 2 issued in definitive form shall be substantially in the form of
Exhibit A or D attached hereto, as applicable (but without the Global Security
Legend and without the “Schedule of Exchanges of Interests in the Global
Security” attached thereto). Each Global
Security shall represent such aggregate principal amount of the outstanding
Securities of Series No. 1 and Series No. 2 as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Securities of Series No. 1 and Series No. 2 from time to time
endorsed thereon and that the aggregate principal amount of outstanding
Securities of Series No. 1 and Series No. 2 represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global
Security to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Securities of Series No. 1 and Series No. 2
represented thereby shall be made by the Trustee, the Depositary or the
Security Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 9(D) of
this Article.
The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of
Euroclear” and the “General Terms and Conditions of Clearstream Bank” and “Customer
Handbook” of Clearstream shall be applicable to transfers of beneficial
interests in the Regulation S Global Securities that are held by members of, or
Participants, in DTC through Euroclear or Clearstream.
(B)
Authentication
.
The Trustee or an
Authenticating Agent shall authenticate by delivery and execution of a Trustee’s
Certificate of Authentication in the form set forth in Section 202 of the
Indenture (1) the Securities of Series No. 1 for original issue on the
Issue Date in the aggregate principal amount of $225,000,000 (the “Original
Securities”), and (2) any Securities of Series No. 2 from time to time
53
for issue only in
exchange for a like principal amount of Securities of Series No. 1, in each
case, upon a Company Order, which Company Order shall specify (x) the
amount of Securities of Series No. 2 to be authenticated and the date of
original issue thereof and (y) the amount of Securities of Series No. 1
and Series No. 2 to be issued in global form or definitive form. The aggregate principal amount of Securities
of Series No. 1 and Series No. 2 Outstanding at any time may not exceed $225,000,000.
(C)
Security Registrar, Paying Agent and Depositary
.
The Company initially
appoints the Trustee to act as the Security Registrar and Paying Agent for the
Securities of Series No. 1 and Series No. 2.
Upon the occurrence of, and during the continuation of, an Event of
Default set forth in Sections 701(d) or 701(e) of the Indenture, the Trustee
shall serve as Paying Agent for the Securities of Series No. 1 and Series No.
2. The Company shall maintain a Place of
Payment for the Securities of Series No. 1 and Series No. 2 within the City and
State of New York pursuant to Section 502 of the Indenture.
The Company initially
appoints The Depository Trust Company (“DTC”) to act as Depositary with respect
to the Global Securities. The Trustee
has been appointed by DTC to act as Security Custodian with respect to the
Global Securities.
(D)
Transfer and Exchange
.
(1)
Transfer and Exchange of Global
Securities
. A Global Security may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary. All Global
Securities shall be exchanged by the Company for Definitive Securities if:
(a)
the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary for the Global Securities or that it is
no longer a clearing agency registered under the Exchange Act and, in either
case, a successor Depositary is not appointed by the Company within 90 days
after the date of such notice from the Depositary or
(b)
the Company, in
its sole discretion, notifies the Trustee in writing that it elects to cause
issuance of the Securities of Series No. 1 and Series No. 2 in certificated
form; or
(c)
there has
occurred and is continuing a Default or Event of Default with respect to the
Securities of Series No. 1 or Series No. 2.
Upon
the occurrence of either of the preceding events in (a), (b) or (c) above,
Definitive Securities shall be issued in such names as the Depositary shall
instruct the Trustee. Global Securities
also may be exchanged or replaced, in whole or in part, as provided in Sections
306 and 309 of the Indenture. Every
Security of Series No. 1 or Series No. 2 authenticated and delivered in
exchange for, or in lieu of, a Global Security or any portion thereof, pursuant
to Sections 306 and 309 of the Indenture, shall be authenticated and delivered
in the form of, and shall be, a Global Security. A Global Security may not be exchanged for
54
another
Security of Series No. 1 or Series No. 2 other than as provided in this Section 9(D)(1)(c),
however, beneficial interests in a Global Security may be transferred and
exchanged as provided in Section 9(D)(1), (3) or (6) of this Article.
(2)
Transfer and Exchange of Beneficial
Interests in the Global Securities
. The transfer
and exchange of beneficial interests in the Global Securities shall be effected
through the Depositary, in accordance with the provisions of this Supplemental
Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Securities shall be
subject to restrictions on transfer comparable to those set forth herein to the
extent required by the Securities Act.
Transfers of beneficial interests in the Global Securities also shall
require compliance with either subparagraph (a) or (b) below, as
applicable, as well as one or more of the other following subparagraphs as
applicable:
(a)
Transfer of
Beneficial Interests in the Same Global Security
. Beneficial interests in any Restricted Global
Security may be transferred to Persons who take delivery thereof in the form of
a beneficial interest in the same Restricted Global Security in accordance with
the transfer restrictions set forth in the Private Placement Legend;
provided, however,
that prior to the expiration of the
Restricted Period transfers of beneficial interests in the Regulation S Global
Security may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Security may be
transferred only to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security. No written orders or instructions shall be
required to be delivered to the Security Registrar to effect the transfers
described in this Section 9(D)(2)(a).
(b)
All Other
Transfers and Exchanges of Beneficial Interests in Global Securities
. In connection with all transfers and
exchanges of beneficial interests (other than a transfer of a beneficial
interest in a Global Security to a Person who takes delivery thereof in the
form of a beneficial interest in the same Global Security), the transferor of
such beneficial interest must deliver to the Security Registrar either:
(i)
both (A) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another
Global Security in an amount equal to the beneficial interest to be transferred
or exchanged and (B) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or
(ii)
both (A) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
to cause to
55
be issued a Definitive Security in an amount
equal to the beneficial interest to be transferred or exchanged and (B)
instructions given by the Depositary to the Security Registrar containing
information regarding the Person in whose name such Definitive Security shall
be registered to effect the transfer or exchange referred to in (A) above.
Upon
an Exchange Offer by the Company in accordance with Article Four, Section 9(D)(6)
of this Supplemental Indenture, the requirements of this Section 9(D)(2)(a)
shall be deemed to have been satisfied upon receipt by the Security Registrar
of the instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global Securities. Upon notification from the Security Registrar
that all of the requirements for transfer or exchange of beneficial interests
in Global Securities contained in this Supplemental Indenture, the Securities
of Series No. 1 or Series No. 2 and otherwise applicable under the Securities
Act have been satisfied, the Trustee shall adjust the principal amount of the
relevant Global Securities pursuant to Article Four, Section 9(D)(8)
of this Supplemental Indenture.
(c)
Transfer of
Beneficial Interests to Another Restricted Global Security
.
A beneficial interest in any Restricted
Global Security may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global Security if the
transfer complies with the requirements of clause (2) above and the Security
Registrar receives the following:
(i)
if the
transferee shall take delivery in the form of a beneficial interest in the Rule
144A Global Security, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in Item (1) thereof; or
(ii)
if the
transferee shall take delivery in the form of a beneficial interest in the
Regulation S Global Security, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in Item (2) thereof.
(d)
Transfer and
Exchange of Beneficial Interests in a Restricted Global Security for Beneficial
Interests in the Unrestricted Global Security
. A beneficial interest in any Restricted
Global Security may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Security or transferred to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security if the exchange or transfer complies with the requirements of
clause (b) above and:
(i)
such exchange
or transfer is effected pursuant to an Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the case of a
transfer, is not (A) a Broker-Dealer, (B) a Person participating in the
distribution of the Exchange Securities or (C)
56
a Person who is an affiliate (as defined in
Rule 144) of the Company;
(ii)
any such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(iii)
any such
transfer is effected by a Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(iv)
the Security
Registrar receives the following:
(A)
if the holder
of such beneficial interest in a Restricted Global Security proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Security, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in Item (1)(a) thereof; or
(B)
if the holder
of such beneficial interest in a Restricted Global Security proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of a beneficial interest in an Unrestricted Global Security, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in Item (4) thereof;
and,
in each such case set forth in this subparagraph (iv), an Opinion of Counsel in
form reasonably acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are not required
in order to maintain compliance with the Securities Act.
If any such transfer is
effected pursuant to subparagraph (ii) or (iv) above at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue
and, upon receipt of an authentication order in accordance with Section 9(B)(ii)
of this Article, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal amount of
beneficial interests transferred pursuant to subparagraph (ii) or (iv) above.
Beneficial interests in
an Unrestricted Global Security cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a
Restricted Global Security.
(3)
Transfer or Exchange of Beneficial
Interests for Definitive Securities
.
(a)
Beneficial
Interests in Restricted Global Securities to Restricted Definitive Securities
. If any holder of a beneficial interest in a
Restricted Global Security proposes to exchange such beneficial interest
57
for a Definitive Security or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Security, then, upon receipt by the Security Registrar of the
following documentation:
(i)
if the holder
of such beneficial interest in a Restricted Global Security proposes to
exchange such beneficial interest for a Restricted Definitive Security, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in Item (2)(a) thereof;
(ii)
if such
beneficial interest is being transferred to a QIB in accordance with Rule 144A
under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in Item (1) thereof;
(iii)
if such
beneficial interest is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in Item (2) thereof;
(iv)
if such
beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in Item (3)(a) thereof;
(v)
if such beneficial
interest is being transferred to an Institutional Accredited Investor or in
reliance on any other exemption from the registration requirements of the
Securities Act, in either case other than those listed in subparagraphs (ii)
through (iv) above, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates and any Opinion
of Counsel required by Item (3) thereof, if applicable;
(vi)
if such
beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in Item (3)(b) thereof; or
(vii)
if such
beneficial interest is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in Item (3)(c) thereof,
the
Trustee, upon notice of receipt of such documentation by the Security
Registrar, shall cause the aggregate principal amount of the applicable Global
Security to be reduced accordingly pursuant to Section 9(D)(8) of this
Article, and the Company shall execute and the Trustee shall authenticate and
make available for delivery to the Person designated in the instructions a
Definitive
58
Security
in the appropriate principal amount. Any
Definitive Security issued in exchange for a beneficial interest in a
Restricted Global Security pursuant to this Section 9(D)(3) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Security Registrar through instructions from the Depositary and the Participant
or Indirect Participant. The Trustee
shall make available for delivery such Definitive Securities to the Persons in
whose names such Securities of Series No. 1 or Series No. 2 are so
registered. Any Definitive Security
issued in exchange for a beneficial interest in a Restricted Global Security
pursuant to this Section 9(D)(3)(a) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.
Notwithstanding Sections
9(D)(3)(a)(i) and (iii) hereof, a beneficial interest in the Regulation S
Global Security may not be (a) exchanged for a Definitive Security prior to (x)
the expiration of the Restricted Period and (y) the receipt by the Security
Registrar of any certificates required pursuant to Rule 903(c)(3)(B) under the
Securities Act or (b) transferred to a Person who takes delivery thereof in the
form of a Definitive Security prior to the conditions set forth in clause (a)
above or unless the transfer is pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(b)
Beneficial
Interests in Restricted Global Securities to Unrestricted Definitive Securities
. Notwithstanding Section 9(D)(3)(a)
hereof, a holder of a beneficial interest in a Restricted Global Security may
exchange such beneficial interest for an Unrestricted Definitive Security or
may transfer such beneficial interest to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Security only if:
(i)
such exchange
or transfer is effected pursuant to an Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a transfer, is not
(A) a broker-dealer, (B) a Person participating in the distribution of the
Exchange Securities or (C) a Person who is an affiliate (as defined in Rule
144) of the Company;
(ii)
any such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(iii)
any such
transfer is effected by a Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(iv)
the Security
Registrar receives the following:
(A)
if the holder
of such beneficial interest in a Restricted Global Security proposes to
exchange such beneficial interest for a Definitive Security that does not bear
the Private Placement Legend, a certificate from
59
such
holder in the form of Exhibit C hereto, including the certifications in Item
(1)(b) thereof; or
(B)
if the holder
of such beneficial interest in a Restricted Global Security proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of a Definitive Security that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit B hereto,
including the certifications in Item (4) thereof;
and,
in each such case set forth in this subparagraph (iv), an Opinion of Counsel in
form reasonably acceptable to the Company, to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are not required
in order to maintain compliance with the Securities Act.
(c)
Beneficial
Interests in Unrestricted Global Securities to Unrestricted Definitive
Securities
. If any
holder of a beneficial interest in an Unrestricted Global Security proposes to
exchange such beneficial interest for a Definitive Security or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Security, then, upon notice by the Security Registrar of
satisfaction of the conditions set forth in Section 9(D)(2)(b) of this
Article, the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to Section 9(D)(8)
of this Article, and the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Person designated in the
instructions a Definitive Security in the appropriate principal amount. Any Definitive Security issued in exchange
for a beneficial interest pursuant to this Section 9(D)(3)(c) shall be registered in such name or names and
in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Security Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The Trustee shall make available for delivery
such Definitive Securities to the Persons in whose names such Securities of
Series No. 1 or Series No. 2 are so registered.
Any Definitive Security issued in exchange for a beneficial interest
pursuant to this Section 9(D)(3)(c) shall not bear the Private Placement
Legend. A beneficial interest in an
Unrestricted Global Security cannot be exchanged for a Definitive Security
bearing the Private Placement Legend or transferred to a Person who takes
delivery thereof in the form of a Definitive Security bearing the Private
Placement Legend.
(4)
Transfer and Exchange of Definitive
Securities for Beneficial Interests
.
(a)
Restricted
Definitive Securities to Beneficial Interests in Restricted Global Securities
. If any Holder of a Restricted Definitive
Security proposes to exchange such Security of Series No. 1 or Series No. 2 for
a beneficial interest in a Restricted Global Security or to
60
transfer such Definitive Securities to a
Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Security, then, upon receipt by the Security Registrar of the
following documentation:
(i)
if the Holder
of such Restricted Definitive Security proposes to exchange such Security of
Series No. 1 or Series No. 2 for a beneficial interest in a Restricted Global
Security, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in Item (2)(b) thereof;
(ii)
if such Definitive
Security is being transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in Item (1) thereof;
(iii)
if such
Definitive Security is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in Item (2) thereof;
(iv)
if such
Definitive Security is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in Item (3)(a) thereof;
(v)
if such
Definitive Security is being transferred to an Institutional Accredited
Investor or in reliance on any other exemption from the registration
requirements of the Securities Act, in either case, other than those listed in
subparagraphs (ii) through (iv) above, a certificate in the form of Exhibit B
hereto, including certifications, certificates, and any Opinion of Counsel
required by Item (3) thereof, if applicable;
(vi)
if such
Definitive Security is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in Item (3)(b) thereof; or
(vii)
if such
Definitive Security is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in Item (3)(c) thereof,
the
Trustee, upon notice of receipt of such documentation by the Security
Registrar, shall cancel the Definitive Security, increase or cause to be
increased the aggregate principal amount of, in the case of subparagraph (i)
above, the appropriate Restricted Global Security and, in the case of
subparagraph (ii) above, the Rule 144A Global Security, and, in the case of subparagraph
(iii) above, the Regulation S Global Security.
61
(b)
Restricted
Definitive Securities to Beneficial Interests in Unrestricted Global Securities
. A Holder of a Restricted Definitive Security
may exchange such Security of Series No. 1 or Series No. 2 for a beneficial
interest in an Unrestricted Global Security or transfer such Restricted
Definitive Security to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security only if:
(i)
such exchange
or transfer is effected pursuant to an Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, is not (A) a broker-dealer, (B) a
Person participating in the distribution of the Exchange Securities or (C) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(ii)
any such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(iii)
any such
transfer is effected by a Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(iv)
the Security
Registrar receives the following:
(A)
if the Holder
of such Definitive Securities proposes to exchange such Securities of Series
No. 1 or Series No. 2 for a beneficial interest in the Unrestricted Global
Security, a certificate from such Holder in the form of Exhibit C hereto, including
the certifications in Item (1)(c) thereof; or
(B)
if the Holder
of such Definitive Securities proposes to transfer such Securities of Series
No. 1 or Series No. 2 to a Person who shall take delivery thereof in the form
of a beneficial interest in the Unrestricted Global Security, a certificate
from such Holder in the form of Exhibit B hereto, including the certifications
in Item (4) thereof;
and,
in each such case set forth in this subparagraph (iv), an Opinion of Counsel in
form reasonably acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act, that the restrictions on
transfer contained herein and in the Private Placement Legend are not required
in order to maintain compliance with the Securities Act, and such Definitive
Securities are being exchanged or transferred in compliance with any applicable
blue sky securities laws of any State of the United States.
62
Upon satisfaction of the
conditions of any of the subparagraphs in this Section 9(D)(4)(b), the
Trustee shall cancel the Definitive Securities and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global Security.
(c)
Unrestricted
Definitive Securities to Beneficial Interests in Unrestricted Global Securities
. A Holder of an Unrestricted Definitive
Security may exchange such Security of Series No. 1 or Series No. 2 for a
beneficial interest in an Unrestricted Global Security or transfer such
Definitive Securities to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Security and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Securities.
If
any such exchange or transfer from a Definitive Security to a beneficial
interest is effected pursuant to Sections 9(D)(4)(b)(ii) or (iv) of this Article or
the first paragraph of this Section 9(D)(4)(c) at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue
and, upon receipt of an authentication order in accordance with Section 9(B)
of this Article, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal amount of
beneficial interests transferred pursuant to Sections 9(D)(4)(b)(ii) or (iv) of
this Article or the first paragraph of this Section 9(D)(4)(c).
(5)
Transfer and Exchange of Definitive
Securities for Definitive Securities
. Upon request
by a Holder of Definitive Securities and such Holder’s compliance with the
provisions of this Section 9(D)(5), the Security Registrar shall register
the transfer or exchange of Definitive Securities. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Security
Registrar the Definitive Securities duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Security Registrar duly
executed by such Holder or by his attorney, duly authorized in writing. In addition, the requesting Holder shall
provide any additional certifications, documents and information, as
applicable, pursuant to the provisions of this Section 9(D)(5).
(a)
Restricted
Definitive Securities to Restricted Definitive Securities
. Restricted Definitive Securities may be
transferred to and registered in the name of Persons who take delivery thereof
if the Security Registrar receives the following:
(i)
if the transfer
shall be made pursuant to Rule 144A under the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in Item (1) thereof;
(ii)
if the transfer
shall be made pursuant to Rule 903 or Rule 904 of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in Item (2) thereof; and
63
(iii)
if the transfer
shall be made pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by Item (3) thereof, if
applicable.
(b)
Restricted
Definitive Securities to Unrestricted Definitive Securities
. Any Restricted Definitive Security may be
exchanged by the Holder thereof for an Unrestricted Definitive Security or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Security if:
(i)
such exchange
or transfer is effected pursuant to an Exchange Offer in accordance with the
Registration Rights Agreement and the Holder of such Securities of Series No. 1
or Series No. 2, in the case of an exchange, or the transferee, in the case of
a transfer, is not (A) a broker-dealer, (B) a Person participating in the
distribution of the Exchange Securities or (C) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(ii)
any such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(iii)
any such transfer
is effected by a Broker-Dealer pursuant to an Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(iv)
the Security
Registrar receives the following:
(A)
if the Holder
of such Restricted Definitive Securities proposes to exchange such Securities
of Series No. 1 or Series No. 2 for an Unrestricted Definitive Security, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in Item (1)(b) thereof; or
(B)
if the Holder of
such Restricted Definitive Securities proposes to transfer such Securities of
Series No. 1 or Series No. 2 to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Security, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in Item (4) thereof;
and,
in each such case set forth in this subparagraph (iv), an Opinion of Counsel in
form reasonably acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act, that the restrictions on
transfer contained herein and in the Private Placement Legend are not required
in order to
64
maintain
compliance with the Securities Act, and such Restricted Definitive Security is
being exchanged or transferred in compliance with any applicable blue sky
securities laws of any State of the United States.
(c)
Unrestricted
Definitive Securities to Unrestricted Definitive Securities
. A Holder of Unrestricted Definitive
Securities may transfer such Securities of Series No. 1 or Series No. 2 to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Security. Upon receipt of a request for
such a transfer, the Security Registrar shall register the Unrestricted
Definitive Securities pursuant to the instructions from the Holder
thereof. Unrestricted Definitive
Securities cannot be exchanged for or transferred to Persons who take delivery
thereof in the form of a Restricted Definitive Security.
(6)
Exchange Offer
.
Upon the occurrence of an Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of (a)
an authentication order in accordance with Section 9(B) of this Article and
(b) an Opinion of Counsel opining as to the enforceability of the Exchange
Securities and the guarantees thereof, if any, the Trustee shall authenticate
(1) one or more Unrestricted Global Securities in an aggregate principal amount
equal to the principal amount of the beneficial interests in the Restricted
Global Securities tendered for acceptance by Persons that are not (i) Broker-Dealers,
(ii) Persons participating in the distribution of the Exchange Securities or
(iii) Persons who are affiliates (as defined in Rule 144) of the Company and
accepted for exchange in such Exchange Offer and (2) Definitive Securities in
an aggregate principal amount equal to the principal amount of the Restricted
Definitive Securities accepted for exchange in such Exchange Offer, unless the
Holders of such Restricted Definitive Securities shall request the receipt of
Definitive Securities, in which case the Company shall execute and the Trustee
shall authenticate and deliver to the Persons designated by the Holders of such
Restricted Definitive Securities one or more Definitive Securities without the
Private Placement Legend in the appropriate principal amount. Concurrent with the issuance of such
Unrestricted Global Securities, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Securities to be reduced
accordingly, and the Company shall execute and the Trustee shall authenticate
and make available for delivery to the Persons designated by the Holders of
Definitive Securities so accepted Definitive Securities in the appropriate
principal amount.
(7)
Legends
. The following
legends shall appear on the face of all Global Securities and Definitive
Securities issued under this Indenture unless specifically stated otherwise in
the applicable provisions of this Supplemental Indenture.
(a)
Private
Placement Legend
.
(i)
Except as
permitted by subparagraph (b) below, each Global Security and each Definitive
Security (and all Securities of Series No. 1 or Series No. 2 issued in exchange
therefor or substitution thereof) shall bear the legend in substantially the
following form:
65
“THIS NOTE (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND THIS
NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THIS NOTE
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER (IF AVAILABLE), (IV) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER
THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.”
(ii)
Notwithstanding
the foregoing, any Global Security or Definitive Security issued pursuant to
subparagraph (2)(d), (3)(b), (4)(b), (4)(c), (5)(b), (5)(c) or (6) of this Section 9(D)
(and all Securities of Series No. 1 or Series No. 2 issued in exchange therefor
or substitution thereof) shall not bear the Private Placement Legend.
(b)
Global Security
Legend
. Each Global Security shall
bear a legend in substantially the following form:
66
“THIS GLOBAL SECURITY IS
HELD BY THE DEPOSITARY (AS DEFINED IN THE SUPPLEMENTAL INDENTURE UNDER THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO ARTICLE III OF THE INDENTURE, (II) THIS GLOBAL
SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 9(D)(1)
OF ARTICLE FOUR OF THE SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL SECURITY
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309
OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY OR ANY
SUCCESSOR THERETO.”
Additionally,
for so long as DTC is the Depositary with respect to any Global Security, each
such Global Security shall also bear a legend in substantially the following
form:
“UNLESS THIS SECURITY IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY, TO THE COMPANY OR
ANY SUCCESSOR THERETO OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.”
(8)
Cancellation and/or Adjustment of Global
Securities
.
At such time as all beneficial interests in a particular Global Security
have been exchanged for Definitive Securities or a particular Global Security
has been redeemed, repurchased or canceled in whole and not in part, each such
Global Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 309 of the Indenture. At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to
a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Security or for Definitive Securities, the principal amount
of Securities of Series No. 1 or Series No. 2 represented by such Global
Security shall be reduced accordingly and an endorsement shall be made on such
Global Security, by the Trustee, the Security Custodian or the Depositary at
the direction of the Trustee, to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who shall take
delivery thereof in
67
the form of a beneficial interest in another Global Security, such
other Global Security shall be increased accordingly and an endorsement shall
be made on such Global Security, by the Trustee, the Security Custodian or by
the Depositary at the direction of the Trustee, to reflect such increase.
(9)
General Provisions Relating to Transfers
and Exchanges
.
(a)
To permit
registrations of transfers and exchanges, subject to Section 9(D) of this
Article, the Company shall execute and, upon the Company’s order, the Trustee
or an Authenticating Agent shall authenticate Global Securities and Definitive
Securities at the Security Registrar’s request.
(b)
All
certifications, certificates and Opinions of Counsel required to be submitted
to the Security Registrar pursuant to this Section 9(D) to effect a
transfer or exchange may be submitted by facsimile.
(c)
The Trustee and
the Security Registrar shall have no obligation or duty to monitor, determine
or inquire as to whether any Person is or is not a Person described in clauses
(A), (B) and (C) of each of Sections 9(D)(2)(d)(i), 9(D)(3)(b)(i), 9(D)(4)(b)(i),
9(D)(5)(b)(i) and 9(D)(6) of this Article or under applicable law (other
than the Trust Indenture Act) with respect to any transfer of any interest in
any Security of Series No. 1 or Series No. 2 (including any transfers between
or among Participants or beneficial owners of interests in any Global Security)
other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
ARTICLE FIVE
Miscellaneous
Provisions
SECTION 1.
This Supplemental Indenture No. 1 is a supplement to the
Original Indenture. As supplemented by
this Supplemental Indenture No 1, the Indenture is in all respects ratified,
approved and confirmed, and the Original Indenture and this Supplemental
Indenture No. 1 shall together constitute the Indenture.
SECTION 2.
The recitals contained in this Supplemental Indenture No. 1
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness and makes no representations as to the
validity or sufficiency of this Supplemental Indenture No. 1.
SECTION 3.
This Supplemental Indenture and the Securities shall be
governed by and construed in accordance with the law of the State of New York (including
without limitation Section 5-1401 of the New York General Obligations Law
or any successor to such statute), except to the extent that the Trust
Indenture Act shall be applicable.
68
SECTION 4.
In case any provision in this Supplemental Indenture or the
Securities shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 5.
If any provision of this Supplemental Indenture limits,
qualifies or conflicts with any provision of the Original Indenture, the
provision in this Supplemental Indenture shall control.
This instrument may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
69
IN WITNESS WHEREOF, the
parties hereto have caused this Supplemental Indenture No. 1 to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first written above.
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NORTHWESTERN CORPORATION
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By
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/s/ Brian B. Bird
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Name: Brian B. Bird
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Title:
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Attest:
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/s/ Paul J. Evans
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U.S. BANK NATIONAL ASSOCIATION
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By
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/s/ Lori-Anne Rosenberg
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Name: Lori-Anne Rosenberg
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Title: Asst. Vice Preside
n
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Attest:
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70
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STATE OF NEW YORK
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) ss.:
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COUNTY OF NEW YORK
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)
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On this 1st day of November,
2004, before me, a notary public, the undersigned officer, personally appeared Brian
B. Bird, who acknowledged himself to be the Vice President of Northwestern
Corporation, a corporation and that he, as such Vice President, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by himself as Vice President.
In witness whereof, I
hereunto set my hand and official seal.
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/s/ Keith M. Wixson
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Notary Public
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[STAMP]
KEITH M. WIXSON
NOTARY PUBLIC, State of New York
No. 01WI5081858
Qualified in New York County
Commission Expires July 14, 2007
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71
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STATE OF NEW YORK
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)
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) ss.:
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COUNTY OF NEW YORK
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)
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On this 1st day of November,
2004, before me, a notary public, the undersigned officer, personally appeared Lori-Anne
Rosenberg, who acknowledged herself to be the Asst. Vice President of U.S. Bank
National Association, a corporation and that she, as such Asst. Vice President,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation by herself as Asst.
Vice President.
In witness whereof, I
hereunto set my hand and official seal.
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/s/ Keith M. Wixson
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Notary Public
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[STAMP]
KEITH M. WIXSON
NOTARY PUBLIC, State of New York
No. 01WI5081858
Qualified in New York County
Commission Expires July 14, 2007
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72
Exhibit
A
[Form
of Securities of Series No. 1]
73
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
NorthWestern Corporation
125 S. Dakota Avenue
Sioux Falls, South Dakota 57104
U.S. Bank National Association
60 Livingston Avenue
St. Paul, Minnesota 55107
Re:
5.875%
Senior Secured Notes, Series A due 2014
Reference is hereby made to the Indenture, dated as of
November 1, 2004 (the “
Indenture
”),
between NorthWestern Corporation, as issuer (the “
Company
”),
and U.S. Bank, National Association, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
,
(the “
Transferor
”) owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of $
in such Note[s] or
interests (the “
Transfer
”), to
(the “
Transferee
”), as further specified in Annex
A hereto. In connection with the
Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1.
o
Check if Transferee will
take delivery of a beneficial interest in the 144A Global Note or a Definitive
Note Pursuant to Rule 144A
.
The Transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the “
Securities Act
”), and, accordingly, the Transferor hereby
further certifies that the beneficial interest or Definitive Note is being
transferred to a Person that the Transferor reasonably believed and believes is
purchasing the beneficial interest or Definitive Note for its own account, or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
2.
o
Check If Transferee will
take delivery of a beneficial interest in the Regulation S Global Note or a
Definitive Note pursuant to Regulation S
. The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii)-
74
the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser).
Upon consummation of the proposed transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
be subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note, and/or the Definitive Note and
in the Indenture and the Securities Act.
3.
o
Check and complete if
Transferee will take delivery of a beneficial interest in a Global Note or a
Definitive Note pursuant to any provision of the Securities Act other than Rule
144A or Regulation S
. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(A)
o
such Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act;
or
(B)
o
such Transfer
is being effected to the Company or a subsidiary thereof;
or
(C)
o
such Transfer
is being effected pursuant to an effective registration statement under the
Securities Act and in compliance with the prospectus delivery requirements of
the Securities Act.
4.
o
Check if Transferee will
take delivery of a beneficial interest in an Unrestricted Global Note or an
Unrestricted Definitive Note
.
(a)
o
Check if Transfer is pursuant to Rule 144
. (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b)
o
Check if Transfer is Pursuant to Regulation S
.
(i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
no longer be
75
subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c)
o
Check if Transfer is Pursuant to Other Exemption
. (i) The Transfer is being effected pursuant
to and in compliance with an exemption from the registration requirements of
the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance
with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the
statements contained herein are made for the benefit of the Trustee and the
Registrar and the benefit of the Company.
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[Insert Name of Transferor]
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By:
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Name:
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Title:
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Dated:
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76
ANNEX A TO CERTIFICATE OF TRANSFER
1.
The
Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(1)
o
a beneficial interest in the:
(a)
o
144A Global
Note (CUSIP ),
or
(b)
o
Regulation S Global
Note (CUSIP ),
or
(2)
o
a Restricted Definitive Note.
2.
After
the Transfer the Transferee will hold:
[CHECK ONE]
(3)
o
a beneficial interest in the:
(a)
o
144A Global
Note (CUSIP ),
or
(b)
o
Regulation S
Global Note (CUSIP ),
or
(c)
o
Unrestricted
Global Note (CUSIP ),
or
(4)
o
a Restricted Definitive Note; or
(5)
o
an Unrestricted Definitive Note,
in accordance with the
terms of the Indenture.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
NorthWestern Corporation
125 S. Dakota Avenue
Sioux Falls, South Dakota 57104
U.S. Bank National Association
60 Livingston Avenue
St. Paul, Minnesota 55107
Re:
5.875%
Senior Secured Notes, Series A due 2014
(CUSIP )
Reference is hereby made to the Indenture, dated as of
November 1, 2004 (the “
Indenture
”),
between NorthWestern Corporation, as issuer (the “
Company
”),
and U.S. Bank National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
,
(the “
Owner
”) owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $
in such Note[s] or interests (the “
Exchange
”). In connection with the Exchange, the Owner
hereby certifies that:
1.
Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note
(a)
o
Check if Exchange is from
beneficial interest in a Restricted Global Note to beneficial interest in an
Unrestricted Global Note
. In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the “
Securities
Act
”), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b)
o
Check if Exchange is from
beneficial interest in a Restricted Global Note to Unrestricted Definitive Note
. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(c)
o
Check if Exchange is from
Restricted Definitive Note to beneficial interest in an Unrestricted Global
Note
. In connection with the
Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial
interest is being acquired for the Owner’s own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(d)
o
Check if Exchange is from
Restricted Definitive Note to Unrestricted Definitive Note
. In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
2.
Exchange of Restricted Definitive Notes or
Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes
or Beneficial Interests in Restricted Global Notes
(a)
o
Check if Exchange is from beneficial interest in a Restricted Global
Note to Restricted Definitive Note
.
In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for a Restricted Definitive Note with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Note is being
acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
(b)
o
Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note
. In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
144A Global Note, Regulation S Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.
This certificate and the
statements contained herein are made for the benefit of the Trustee and the
Registrar and the benefit of the Company.
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Name:
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Title:
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Dated:
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2
Exhibit
D
[Form
of Securities of Series No. 2]
3
Exhibit
4.4
NORTHWESTERN CORPORATION
TO
THE BANK OF NEW YORK
AND
MARYBETH LEWICKI
As Trustees under Mortgage and
Deed of Trust, dated as of
October 1, 1945, with NorthWestern Corporation
TWENTY-FOURTH SUPPLEMENTAL INDENTURE
Providing, among other things, for
First Mortgage Bonds, Collateral (2004) Series A, due
2009
First Mortgage Bonds, Collateral (2004) Series B, due 2011
and
First Mortgage Bonds, Collateral (2004) Series C, due 2014
Dated as of November 1, 2004
TWENTY-FOURTH
SUPPLEMENTAL INDENTURE
THIS TWENTY-FOURTH SUPPLEMENTAL INDENTURE, dated as of
November 1, 2004, between NORTHWESTERN CORPORATION, a corporation
duly incorporated and existing under the laws of the State of Delaware
(hereinafter called the “
Company
”), having its principal office at 125
S. Dakota Avenue, Suite 1100, Sioux Falls, South Dakota 57104, and THE BANK OF
NEW YORK (hereinafter called the “
Corporate Trustee
”), a corporation of
the State of New York, whose principal corporate trust office is located at 101
Barclay Street, New York, New York 10286 (successor to MORGAN GUARANTY TRUST
COMPANY OF NEW YORK (formerly Guaranty Trust Company of New York)), and
MARYBETH LEWICKI, whose post office address is c/o The Bank of New York, 101
Barclay Street, New York, New York 10286 (successor Co-Trustee to
Douglas J. MacInnes, Arthur E. Burke, Karl R. Henrich, H.H. Gould, R.
Amundsen, P.J. Crowley and W.T. Cunningham) (said MaryBeth Lewicki being
hereinafter sometimes called the “
Co-Trustee
”, and the Corporate Trustee
and the Co-Trustee being hereinafter together sometimes called the “
Trustees
”),
as Trustees under the Mortgage and Deed of Trust, dated as of October 1, 1945
(hereinafter called the “
Mortgage
” and, together with any indentures
supplemental thereto, the “
Indenture
”), which Mortgage was executed and
delivered by The Montana Power Company, a corporation of the State of New
Jersey (hereinafter called the “
Company-New Jersey
”), as indirect
predecessor under the Mortgage to the Company (the Company being successor
under the Mortgage to NorthWestern Energy, L.L.C. (hereinafter called “
NorthWestern
Energy
”), formerly known as The Montana Power, L.L.C., a limited liability
company of the State of Montana, and NorthWestern Energy being the successor
under the Mortgage to The Montana Power Company, a corporation of the State of
Montana (hereinafter called the “
Company-Montana
”)), to Guaranty Trust
Company of New York and Arthur E. Burke, as Trustees, to secure the payment of
bonds issued or to be issued under and in accordance with the provisions of the
Mortgage, reference to which Mortgage is hereby made, this instrument
(hereinafter called the “
Twenty-fourth Supplemental Indenture
”) being
supplemental thereto;
WHEREAS, by the Mortgage, the Company-New Jersey
covenanted that it would execute and deliver such supplemental indenture or
indentures and such further instruments and do such further acts as might be
necessary or proper to carry out more effectually the purposes of the Indenture
and to make subject to the lien of the Indenture any property thereafter
acquired, made or constructed and intended to be subject to the lien thereof;
and
WHEREAS, the Company-New Jersey executed and delivered
to the Trustees its First Supplemental Indenture, dated as of May 1, 1954
(hereinafter called the “
First Supplemental Indenture
”), and its Second
Supplemental Indenture, dated as of April 1, 1959 (hereinafter called the “
Second
Supplemental Indenture
”); and
WHEREAS, the Company-New Jersey was merged into the
Company-Montana on November 30, 1961, and to evidence the succession of the
Company-Montana to the Company-New Jersey for purposes of the bonds and the
Indenture and the assumption by the Company-Montana of the covenants and
conditions of the Company-New Jersey in the bonds and in the Indenture
contained and to enable the Company-Montana to have and exercise the powers and
rights of the Company-New Jersey under the Indenture in accordance with the
terms thereof, the Company-Montana executed and delivered to the Trustees its
Third Supplemental Indenture, dated as of November 30, 1961 (hereinafter called
the “
Third Supplemental Indenture
”); and
WHEREAS, the Company-Montana executed and delivered to
the Trustees its Fourth Supplemental Indenture, dated as of April 1, 1970
(hereinafter called the “
Fourth Supplemental Indenture
”); its Fifth
Supplemental Indenture, dated as of April 1, 1971 (hereinafter called the “
Fifth
Supplemental Indenture
”); its Sixth Supplemental Indenture, dated as of
March 1, 1974 (hereinafter called the “
Sixth Supplemental Indenture
”);
its Seventh Supplemental Indenture, dated as of December 1, 1974 (hereinafter
called the “
Seventh Supplemental Indenture
”); its Eighth Supplemental
Indenture, dated as of July 1, 1975 (hereinafter called the “
Eighth
Supplemental Indenture
”); its Ninth Supplemental Indenture, dated as of
December 1, 1975 (hereinafter called the “
Ninth Supplemental Indenture
”);
its Tenth Supplemental Indenture, dated as of January 1, 1979 (hereinafter
called the “
Tenth Supplemental Indenture
”); its Eleventh Supplemental
Indenture, dated as of October 1, 1983 (hereinafter called the “
Eleventh
Supplemental Indenture
”); its Twelfth Supplemental Indenture, dated as of
January 1, 1984 (hereinafter called the “
Twelfth Supplemental Indenture
”);
its Thirteenth Supplemental Indenture, dated as of December 1, 1991
(hereinafter called the “
Thirteenth Supplemental Indenture
”); its
Fourteenth Supplemental Indenture, dated as of January 1, 1993 (hereinafter
called the “
Fourteenth Supplemental Indenture
”); its Fifteenth
Supplemental Indenture, dated as of March 1, 1993 (hereinafter called the “
Fifteenth
Supplemental Indenture
”); its Sixteenth Supplemental Indenture, dated as of
May 1, 1993 (hereinafter called the “
Sixteenth Supplemental Indenture
”);
its Seventeenth Supplemental Indenture, dated as of December 1, 1993
(hereinafter called the “
Seventeenth Supplemental Indenture
”); its
Eighteenth Supplemental Indenture, dated as of August 5, 1994 (hereinafter
called the “
Eighteenth Supplemental Indenture
”); its Nineteenth Supplemental
Indenture, dated as of December 16, 1999 (hereinafter called the “
Nineteenth
Supplemental Indenture
”); and its Twentieth Supplemental Indenture, dated
as of November 1, 2001 (hereinafter called the “
Twentieth Supplemental
Indenture
”); and
WHEREAS, the Company-Montana was merged into
NorthWestern Energy (under its then name, The Montana Power, L.L.C.) on
February 13, 2002, and to evidence the succession of NorthWestern Energy (under
its then name, The Montana Power, L.L.C.) to the Company-Montana for purposes
of the bonds and the Indenture and the assumption by NorthWestern Energy (under
its then name, The Montana Power, L.L.C.) of the covenants and conditions of
the Company-Montana in the bonds and in the Indenture contained and to enable
NorthWestern Energy (under its then name, The Montana Power, L.L.C.) to have
and exercise the powers and rights of the Company-Montana under the Indenture
in accordance
2
with the terms thereof,
NorthWestern Energy (under its then name, The Montana Power, L.L.C.) executed
and delivered to the Trustees its Twenty-First Supplemental Indenture, dated as
of February 13, 2002 (hereinafter called the “
Twenty-first Supplemental
Indenture
”); and
WHEREAS, NorthWestern Energy changed its name from The
Montana Power, L.L.C. to NorthWestern Energy, L.L.C. on March 19, 2002; and
WHEREAS, NorthWestern Energy transferred, subject to
the Lien of the Indenture, substantially all of the Mortgaged and Pledged
Property as an entirety to the Company on November 20, 2002 (the “
Transfer
Date
”), and to evidence the succession of the Company to NorthWestern
Energy for purposes of the bonds and the Indenture and the assumption by the
Company of the covenants and conditions of NorthWestern Energy in the bonds and
in the Indenture contained and to enable the Company to have and exercise the
powers and rights of NorthWestern Energy under the Indenture in accordance with
the terms thereof, the Company executed and delivered to the Trustees its
Twenty-second Supplemental Indenture, dated as of November 15, 2002
(hereinafter called the “
Twenty-second Supplemental Indenture
”); and
WHEREAS, the Company executed and delivered to the
Trustees its Twenty-third Supplemental Indenture, dated as of February 1, 2003
(hereinafter called the “
Twenty-third Supplemental Indenture
”); and
WHEREAS, the Mortgage and the First, Second, Third,
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth,
Nineteenth, Twentieth, Twenty-first, Twenty-second and Twenty-third
Supplemental Indentures were recorded in the official records of various
counties and states as required by the Indenture; and
WHEREAS, an instrument dated March 15, 1955 was
executed by the Company-New Jersey appointing Karl R. Henrich as Co-Trustee in
succession to said Arthur E. Burke, resigned, under the Mortgage and by Karl R.
Henrich accepting the appointment as Co-Trustee under the Mortgage in
succession to said Arthur E. Burke, which instrument was recorded in various
counties in the states of Montana, Idaho and Wyoming; and
WHEREAS, an instrument dated June 29, 1962 was
executed by the Company-Montana appointing H.H. Gould as Co-Trustee in
succession to said Karl R. Henrich, resigned, under the Mortgage and by H.H.
Gould accepting the appointment as Co-Trustee under the Mortgage in succession
to said Karl R. Henrich, which instrument was recorded in various counties in
the states of Montana, Idaho and Wyoming; and
WHEREAS, an instrument dated June 22, 1973 was
executed by the Company-Montana appointing R. Amundsen as Co-Trustee in
succession to said H.H. Gould, resigned, under the Mortgage and by R. Amundsen
accepting the appointment as Co-Trustee under the Mortgage in succession to
said H.H. Gould, which instrument was recorded in various counties in the
states of Montana, Idaho and Wyoming; and
3
WHEREAS, an instrument dated July 1, 1986 was executed
by the Company-Montana appointing P.J. Crowley as Co-Trustee in succession to
said R. Amundsen, resigned, under the Mortgage and by P.J Crowley accepting the
appointment as Co-Trustee under the Mortgage in succession to said R. Amundsen,
which instrument was recorded in various counties in the states of Montana,
Idaho and Wyoming; and
WHEREAS, by the Eighteenth Supplemental Indenture, the
Company-Montana appointed (i) W.T. Cunningham as Co-Trustee in succession
to said P.J. Crowley, resigned, under the Mortgage and W.T. Cunningham accepted
the appointment as Co-Trustee under the Mortgage in succession to said P.J.
Crowley, and (ii) The Bank of New York as Corporate Trustee in succession
to Morgan Guaranty Trust Company of New York, resigned, under the Mortgage and The
Bank of New York accepted the appointment as Corporate Trustee under the
Mortgage in succession to said Morgan Guaranty Trust Company of New York, which
supplemental indenture was recorded in various counties in the states of
Montana, Idaho and Wyoming; and
WHEREAS, an instrument dated March 29, 1999 was
executed by the Company-Montana appointing Douglas J. MacInnes as Co-Trustee in
succession to said W.T. Cunningham, resigned, under the Mortgage and by Douglas
J. MacInnes accepting the appointment as Co-Trustee under the Mortgage in
succession to said W.T. Cunningham, which instrument was recorded in various
counties in the states of Montana, Idaho and Wyoming; and
WHEREAS, by the Twenty-third Supplemental Indenture,
the Company appointed MaryBeth Lewicki as Co-Trustee in succession to said
Douglas J. MacInnes, resigned, under the Mortgage and MaryBeth Leweicki
accepted the appointment as Co-Trustee under the Mortgage in succession to said
Douglas J. MacInnes;
WHEREAS, the Company-New Jersey or the Company-Montana
has heretofore issued, in accordance with the provisions of the Mortgage, the
following series of First Mortgage Bonds:
4
|
Series
|
|
Principal
Amount
Issued
|
|
Principal Amount
Outstanding
|
|
|
2-7/8% Series due 1975
|
|
$
|
40,000,000
|
|
NONE
|
|
|
3-1/8% Series due 1984
|
|
6,000,000
|
|
NONE
|
|
|
4-1/2% Series due 1989
|
|
15,000,000
|
|
NONE
|
|
|
8-1/4% Series due 1974
|
|
30,000,000
|
|
NONE
|
|
|
7-1/2% Series due 2001 (Fifth)
|
|
25,000,000
|
|
NONE
|
|
|
8-5/8% Series due 2004
|
|
60,000,000
|
|
NONE
|
|
|
8-3/4% Series due 1981
|
|
30,000,000
|
|
NONE
|
|
|
9.60% Series due 2005
|
|
35,000,000
|
|
NONE
|
|
|
9.70% Series due 2005
|
|
65,000,000
|
|
NONE
|
|
|
9-7/8% Series due 2009
|
|
50,000,000
|
|
NONE
|
|
|
11-3/4% Series due 1993
|
|
75,000,000
|
|
NONE
|
|
|
10/10-1/8% Series due 2004/2014
|
|
80,000,000
|
|
NONE
|
|
|
8-1/8% Series due 2014
|
|
41,200,000
|
|
NONE
|
|
|
7.70% Series due 1999 (Fourteenth)
|
|
55,000,000
|
|
NONE
|
|
|
8-1/4% Series due 2007 (Fifteenth)
|
|
55,000,000
|
|
$365,000
|
|
|
8.95% Series due 2022 (Sixteenth)
|
|
50,000,000
|
|
1,446,000
|
|
|
Secured Medium-Term Notes (Seventeenth)
|
|
68,000,000
|
|
13,000,000
|
|
|
7% Series due 2005 (Eighteenth)
|
|
50,000,000
|
|
5,386,000
|
|
|
6-1/8% Series due 2023 (Nineteenth)
|
|
90,205,000
|
|
90,205,000
|
|
|
5.90% Series due 2023 (Twentieth)
|
|
80,000,000
|
|
80,000,000
|
|
|
0% Series due 1999 (Twenty-first)
|
|
210,321,007
|
|
NONE
|
|
|
7.30% Series due 2006 (Twenty-second)
|
|
150,000,000
|
|
150,000,000
|
|
|
Collateral (2002) Series due 2006
(Twenty-third)
|
|
280,000,000
|
|
NONE(1)
|
|
|
|
|
|
|
|
|
|
(1)
Being
paid and surrendered for cancellation concurrently with the execution and
delivery of this Twenty-fourth Supplemental Indenture.
which bonds are also hereinafter sometimes called “
Bonds
of the First through Twenty-third Series
”, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each
series of bonds (other than the First Series) issued thereunder and of the
coupons to be attached to coupon bonds of such series shall be established by
Resolution of the Board of Directors of the Company and that the form of such series,
as established by said Board of Directors, shall specify the descriptive title
of the bonds and various other terms thereof, and may also contain such
provisions not inconsistent with the provisions of the Indenture as the Board
of Directors may, in its discretion, cause to be inserted therein expressing or
referring to the terms and conditions upon which such bonds are to be issued
and/or secured under the Indenture; and
WHEREAS, Section 120 of the Mortgage provides, among other things,
that any power, privilege or right expressly or impliedly reserved to or in any
way conferred upon the Company by any provision of the Indenture, whether such
power, privilege or right is in any way restricted or is unrestricted, may be
in whole or in part waived or surrendered or subjected to any restriction if at
the time unrestricted or to additional restriction if already restricted, and
the Company may enter into any further covenants, limitations or restrictions
for the benefit of any one or more series of bonds issued thereunder, or the
Company may cure any ambiguity contained therein or in any supplemental
indenture or may (in lieu of establishment by Resolution as provided in
Section 8 of the Mortgage) establish the terms and provisions of any
series of bonds other than the First Series, by an instrument in writing
executed and acknowledged by the Company in such manner as would be necessary
to entitle a conveyance of real estate to record in all of the states in which
any property at the time subject to the lien of the Indenture shall be
situated; and
WHEREAS, the Company now desires to create three new series of bonds
and (pursuant to the provisions of Section 120 of the Mortgage) to add to
its covenants and
5
agreements contained in the
Mortgage certain other covenants and agreements to be observed by it and to
alter and amend in certain respects the covenants and provisions contained in
the Indenture; and
WHEREAS, the execution and delivery by the Company of this
Twenty-fourth Supplemental Indenture, and the terms of the Bonds of the
Twenty-fourth, Twenty-fifth and Twenty-sixth Series, hereinafter referred to,
have been duly authorized by the Board of Directors of the Company by
appropriate Resolutions of said Board of Directors.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and
of $1.00 to it duly paid by the Trustees at or before the ensealing and
delivery of these presents, the receipt whereof is hereby acknowledged, and in
further evidence of assurance of the estate, title and rights of the Trustees
and in order further to secure the payment of both the principal of and
interest and premium, if any, on the bonds from time to time issued under the
Indenture, according to their tenor and effect and the performance of all the
provisions of the Indenture (including any modification made as in the Mortgage
provided) and of said bonds, and to confirm the lien of the Mortgage, as
heretofore supplemented, on certain after-acquired property, hereby grants,
bargains, sells, releases, conveys, assigns, transfers, mortgages, pledges,
sets over and confirms (subject, however, to Excepted Encumbrances as defined
in Section 6 of the Mortgage, as heretofore supplemented) unto MaryBeth
Lewicki, Co-Trustee, and (to the extent of its legal capacity to hold the same
for the purposes hereof) to The Bank of New York, the Corporate Trustee, as
Trustees under the Indenture, and to their successor or successors in said
trust, and to said Trustees and their successors and assigns forever, all
property, real, personal and mixed, of the kind or nature specifically
mentioned in the Mortgage, as heretofore supplemented, or of any other kind or
nature (whether or not located in the State of Montana), acquired by the
Company after the date of the execution and delivery of the Mortgage, as
heretofore supplemented (except any herein or in the Mortgage, as heretofore
supplemented, expressly excepted), now owned or, subject to the provisions of subsection (I)
of Section 87 of the Mortgage, as heretofore supplemented, hereafter
acquired by the Company (by purchase, consolidation, merger, donation,
construction, erection or in any other way) and wheresoever situated, including
(without in anywise limiting or impairing by the enumeration of the same the
scope and intent of the foregoing, or of any general description contained in
the Indenture) all lands, power sites, flowage rights, water rights, water
locations, water appropriations, ditches, flumes, reservoirs, reservoir sites,
canals, raceways, dams, dam sites, aqueducts and all other rights or means for
appropriating, conveying, storing and supplying water; all rights of way and
roads; all plants for the generation of electricity by steam, water and/or
other power; all powerhouses, gas plants, street lighting systems, standards
and other equipment incidental thereto, telephone, radio and television
systems, air-conditioning systems and equipment incidental thereto, water
works, water systems, steam heat and hot water plants, substations, lines,
service and supply systems, bridges, culverts, tracks, ice or refrigeration
plants and equipment, offices, buildings and other structures and the equipment
thereof, all machinery, engines, boilers, dynamos, electric, gas and other
machines, regulators, meters, transformers, generators, motors, electrical, gas
and mechanical appliances, conduits, cables, water, steam heat, gas or other
6
pipes, gas mains and pipes,
service pipes, fittings, valves and connections, pole and transmission lines,
wires, cables, tools, implements, apparatus, furniture and chattels; all
franchises, consents or permits, all lines for the transmission and
distribution of electric current, gas, steam heat or water for any purpose
including towers, poles, wires, cables, pipes, conduits, ducts and all
apparatus for use in connection therewith; all real estate, lands, easements,
servitudes, licenses, permits, franchises, privileges, rights of way and other
rights in or relating to real estate or the occupancy of the same and (except
as herein or in the Mortgage, as heretofore supplemented, expressly excepted)
all the right, title and interest of the Company in and to all other property
of any kind or nature appertaining to and/or used and/or occupied and/or
enjoyed in connection with any property hereinbefore or in the Mortgage, as
heretofore supplemented, described.
TOGETHER with all and singular the tenements,
hereditaments, prescriptions, servitudes and appurtenances belonging or in
anywise appertaining to the aforesaid property or any part thereof, with the
reversion and reversions, remainder and remainders and (subject to the
provisions of Section 57 of the Mortgage) the tolls, rents, revenues,
issues, earnings, income, product and profits thereof, and all the estate,
right, title and interest and claim whatsoever, at law as well as in equity,
which the Company now has or may hereafter acquire in and to the aforesaid
property and franchises and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to
the provisions of subsection (I) of Section 87 of the Mortgage, as
heretofore supplemented, all the property, rights and franchises acquired by
the Company (by purchase, consolidation, merger, donation, construction,
erection or in any other way) after the date hereof, except any herein or in
the Mortgage, as heretofore supplemented, expressly excepted, shall be and are
as fully granted and conveyed hereby and as fully embraced within the lien
hereof and the lien of the Mortgage, as heretofore supplemented, as if such
property, rights and franchises were now owned by the Company and were
specifically described herein and conveyed hereby.
PROVIDED that the following are not and are not
intended to be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, hypothecated, affected, pledged, set over or
confirmed hereunder and are hereby expressly excepted from the lien and
operation of the Mortgage, as supplemented, viz: (1) cash,
shares of stock, bonds, notes and other obligations and other securities not
specifically pledged, paid, deposited, delivered or held under the Mortgage, as
supplemented, or covenanted so to be; (2) merchandise, equipment,
apparatus, materials or supplies held for the purpose of sale or other
disposition in the usual course of business; fuel, oil and similar materials
and supplies consumable in the operation of any of the properties of the
Company; all aircraft, tractors, rolling stock, trolley coaches, buses, motor
coaches, automobiles, motor trucks, and other vehicles and materials and
supplies held for the purpose of repairing or replacing (in whole or part) any
of the same; (3) bills, notes and accounts receivable, judgments, demands
and choses in action, and all contracts, leases and operating agreements not
specifically pledged under the Mortgage, as supplemented, or covenanted so to
be; the Company’s contractual rights or other interest in or with respect to
tires not owned by the Company; (4) the last day of the term of any lease
or leasehold which may be or become subject to the
7
lien of the Mortgage, as
supplemented; (5) electric energy, gas, steam, water, ice, and other
materials or products generated, manufactured, produced, purchased or acquired
by the Company for sale, distribution or use in the ordinary course of its
business; all timber, minerals, mineral rights and royalties and all Gas and Oil
Production Property, as defined in Section 4 of the Mortgage, as
supplemented; (6) the Company’s franchise to be a corporation; and
(7) any property heretofore released pursuant to any provisions of the
Indenture and not heretofore disposed of by the Company-New Jersey, the
Company-Montana, NorthWestern Energy or the Company; provided, however, that
the property and rights expressly excepted from the lien and operation of the
Mortgage, as supplemented, in the above subdivisions (2) and
(3) shall (to the extent permitted by law) cease to be so excepted in the
event and as of the date that either or both of the Trustees or a receiver or
trustee shall enter upon and take possession of the Mortgaged and Pledged
Property in the manner provided in Article XIII of the Mortgage by reason of
the occurrence of a Default as defined in Section 65 thereof.
TO HAVE AND TO HOLD all such properties, real,
personal and mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed by the Company as
aforesaid, or intended so to be, unto the Co-Trustee and (to the extent of its
legal capacity to hold the same for the purposes hereto) unto the Corporate
Trustee, as Trustees, and their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon
the same terms, trusts and conditions and subject to and with the same provisos
and covenants as are set forth in the Mortgage, as supplemented, this
Twenty-fourth Supplemental Indenture being supplemental thereto.
AND IT IS HEREBY COVENANTED by the Company that all
the terms, conditions, provisos, covenants and provisions contained in
the Mortgage, as supplemented, shall affect and apply to
the property hereinbefore described and conveyed and to the estate, rights,
obligations and duties of the Company and the Trustees and the beneficiaries of
the trust with respect to said property, and to the Trustees and their
successors as Trustees of said property in the same manner and with the same
effect as if the said property had been owned by the Company-New Jersey at the
time of the execution of the Mortgage, and had been specifically and at length
described in and conveyed to the Trustees, by the Mortgage as a part of the
property therein stated to be conveyed.
SUBJECT NEVERTHELESS, to the limitation permitted by
subsection (I) of Section 87 of the Mortgage, as supplemented,
namely, that notwithstanding the foregoing, the Mortgage, as supplemented,
shall not become or be or be required to become or be a lien upon any of the
properties or franchises owned by the Company on the Transfer Date or
thereafter acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) except (a) those
acquired by it from NorthWestern Energy, and improvements, extensions and
additions thereto and renewals and replacements thereof, (b) the property
made and used by the Company as the basis under any of the provisions of the
Indenture for the authentication and delivery of additional bonds or the
withdrawal of cash or the release of property or a credit under Section 39
or Section 40 of the
8
Indenture, and (c) such
franchises, repairs and additional property as may be acquired, made or constructed
by the Company (1) to maintain, renew and preserve the franchises covered
by the Indenture, or (2) to maintain the property mortgaged and intended
to be mortgaged under the Indenture as an operating system or systems in good
repair, working order and condition, or (3) in rebuilding or renewal of
property, subject to the Lien under the Indenture, damaged or destroyed, or
(4) in replacement of or substitution for machinery, apparatus, equipment,
frames, towers, poles, wire, pipe, tools, implements and furniture, subject to
the Lien thereunder, which shall have become old, inadequate, obsolete, worn
out, unfit, unadapted, unserviceable, undesirable or unnecessary for use in the
operation of the property mortgaged and intended to be mortgaged thereunder.
The Company further covenants and agrees to and with
the Trustees and their successors in said trust under the Indenture, as
follows:
ARTICLE I
Twenty-fourth Series of
Bonds
SECTION 1.1 There shall be a series of bonds designated “Collateral
(2004) Series A, due 2009” (such series herein sometimes referred to as
the “
Twenty-fourth Series
” and the bonds of such series herein sometimes
referred to as the “
Bonds of the Twenty-fourth Series
”) each of which
shall also bear the descriptive title “First Mortgage Bond”, and the form
thereof, which as established by Resolution of the Board of Directors of the
Company, shall be substantially as provided in
Exhibit A
attached
hereto and, thereby, shall contain suitable provisions with respect to the
matters hereinafter in this Section specified.
Bonds of the Twenty-fourth Series shall be issued to
Lehman Commercial Paper Inc., as collateral agent (together with its successors
in such capacity, the “
Collateral Agent
”) under the Bond Delivery and
Collateral Agreement, dated as of November 1, 2004 (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 Revolving Credit Applicable Share (as hereinafter defined)
of the Revolving Credit Obligations (as hereinafter defined) under the Credit
Agreement, dated as of November 1, 2004 (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, the several
lenders from time to time parties thereto (the “
Lenders
”), Lehman
Brothers Inc. and Deutsche Bank Securities, Inc., as joint lead arrangers and
joint bookrunners, Deutsche Bank Securities Inc., as syndication agent, Union
Bank of California, N.A. and KeyBank National Association, as co-documentation
agents, Lehman Commercial Paper Inc., as administrative agent (in such
capacity, the “
Administrative Agent
”) and the Collateral Agent.
As used herein, “
Revolving Credit Obligations
”
means the obligations of the Company (A) to pay (i) principal of and
interest on (a) the Revolving Credit Loans (as defined in the Credit Agreement),
(b) the Swing Line Loans (as defined in the Credit
9
Agreement), and (c) drawings
under Letters of Credit that are not reimbursed pursuant to and in accordance
with the Credit Agreement (collectively, “
Revolving Loans
”), (ii)
commitment fees on the average daily amount of the unused Total Revolving
Credit Commitments (as defined in the Credit Agreement); and (iii) letter of
credit fees on the amount available to be drawn under Letters of Credit (as
defined in the Credit Agreement), and (B) to cash collateralize Letters of
Credit pursuant to and in accordance with Section 8 of the Credit
Agreement..
As used herein, “
Revolving Credit Applicable Share
”
means, as of any day, a fraction (expressed as a percentage rounded to the
second decimal place), (i) the numerator of which is the aggregate
principal amount of the Bonds of the Twenty-fourth Series that are Outstanding
on such day, and (ii) the denominator of which is the sum of (a) the
aggregate principal amount of the Bonds of the Twenty-fourth Series that are
Outstanding on such day, plus (b) the aggregate principal amount of the
First Mortgage Bonds, Collateral (2004) Series A, due 2009, of the Company
(the “
South Dakota Revolving Credit Bonds
”) that are outstanding on such
day under the Company’s Mortgage Indenture and Deed of Trust, dated as of
August 1, 1993, relating (among other things) to property owned by the
Company in the States of South Dakota, Nebraska, Iowa and North Dakota (as
amended and supplemented, the “
South Dakota Mortgage
”). Simultaneously with the issuance and
registration of the Bonds of the Twenty-fourth Series in the name of the
Collateral Agent (for the same purpose), the South Dakota Revolving Credit
Bonds will be issued to the Collateral Agent to secure the Revolving Credit
Obligations under the Credit Agreement.
Initially, the Revolving Credit Applicable Share will be 72.00% (being
the expression as a percentage (rounded to the second decimal place) of a
fraction, the numerator of which is $90,000,000 (the aggregate principal amount
of the Bonds of the Twenty-fourth Series that are to be issued and become
Outstanding) and the denominator of which is $125,000,000 (the sum of
$90,000,000, the aggregate principal amount of the Bonds of the Twenty-fourth
Series that are to be issued and become Outstanding, plus $35,000,000, the
aggregate principal amount of the South Dakota Revolving Credit Bonds that are
to be issued and become outstanding under the South Dakota Mortgage simultaneously
with the issuance of the Bonds of the Twenty-fourth Series). Pursuant to the Collateral Agreement, the
Collateral Agent has agreed to furnish to the Corporate Trustee (with a copy to
the Company) as soon as practicable after any change in the Revolving Credit
Applicable Share, a certificate, signed by a person purporting to be its duly
authorized officer, notifying the Corporate Trustee of such change in the
Revolving Credit Applicable Share (a “
Revolving Credit Applicable Share
Certificate
”). Each Revolving Credit
Applicable Share Certificate shall set forth (i) the changed Revolving
Credit Applicable Share, (ii) the date such change occurred,
(iii) the aggregate principal amount of the Bonds of the Twenty-fourth
Series then Outstanding, and (iv) the aggregate principal amount of the
South Dakota Revolving Credit Bonds then outstanding under the South Dakota
Mortgage. The Corporate Trustee may
conclusively presume that the Revolving Credit Applicable Share is 72.00%
unless and until the Corporate Trustee receives a Revolving Credit Applicable
Share Certificate. Following receipt by
the Corporate Trustee of a Revolving Credit Applicable Share Certificate, the
Corporate Trustee may conclusively presume that the Revolving Credit Applicable
Share is as set forth in such Revolving Credit Applicable Share Certificate
unless and until the Corporate Trustee
10
receives a subsequent Revolving
Credit Applicable Share Certificate (and the Corporate Trustee shall be fully
protected in relying thereon).
Bonds of the Twenty-fourth Series shall mature on
November 1, 2009 (the “
Revolving Credit Maturity Date
”), with the unpaid
principal of the Bonds of the Twenty-fourth Series to be payable on the
Revolving Credit Maturity Date; they shall be issued as fully registered bonds
in denominations of One Thousand Dollars or in any integral multiple of One
Dollar in excess of One Thousand Dollars; the unpaid principal amount of the
Bonds of the Twenty-fourth Series shall bear interest (i) with respect to the
portion or amount of such principal that is equal to the principal amount of
Revolving Loans, 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
Revolving 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 Revolving Loans), payable on each day on which interest is
payable on Revolving Loans in accordance with the Credit Agreement (and in an
amount equal to the Revolving Credit Applicable Share of the amount of interest
that is payable on Revolving Loans on such day in accordance with the Credit
Agreement), (ii) with respect to the portion or amount of such principal (in
excess of the amount described in the preceding clause (i)) that is equal to
the Revolving Credit Applicable Share of the unused Total Revolving Credit
Commitments (as defined in the Credit Agreement), at one or more variable
interest rates per annum which rate or rates for any day shall be equal to the
rate or rates per annum at which commitment fees are payable under the Credit
Agreement on the unused Total Revolving Credit Commitments, payable on each day
on which commitment fees are payable under the Credit Agreement (and in an
amount equal to the Revolving Credit Applicable Share of the amount of
commitment fees that is payable under the Credit Agreement on such day), and
(iii) with respect to the portion or amount of such principal (in excess of the
amounts described in the preceding clauses (i) and (ii)) that is equal to the
Revolving Credit Applicable Share of the amount available to be drawn under
Letters of Credit (as defined in the Credit Agreement), 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 at which letter of credit fees are payable under the
Credit Agreement on the amount available to be drawn under Letters of Credit,
payable on each day on which letter of credit fees are payable under the Credit
Agreement (and in an amount equal to the Revolving Credit Applicable Share of
the amount of letter of credit fees that is payable under the Credit Agreement
on such day), in each case, to the Collateral Agent, as the registered owner,
without regard to, or 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. Bonds of the
Twenty-fourth Series shall be dated as in Section 10 of the Mortgage
provided.
At the option of the registered owner, any Bonds of
the Twenty-fourth Series, upon surrender thereof for cancellation at the office
or agency of the Company in the Borough of Manhattan, The City of New York,
shall be exchangeable for a like aggregate principal amount of bonds of the same
series of other authorized denominations.
11
Bonds of the Twenty-fourth Series shall not be
transferable except to any successor Collateral Agent under the Collateral
Agreement. As a condition precedent to
any transfer of the Bonds of the Twenty-fourth Series by the Collateral Agent,
the Collateral Agent shall submit to the Company, the Corporate Trustee and, if
applicable, any bond registrar or transfer agent for the Bonds of the
Twenty-fourth Series (in addition to all other documents and instruments
required to be submitted pursuant to the Mortgage) a 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 (and the Corporate Trustee may
conclusively presume the statements in any such certificate of the Collateral
Agent to be correct and shall be fully protected in relying thereon).
Any transfer of Bonds of the Twenty-fourth Series
(i) shall be subject to the provisions of Section 12 of the Mortgage,
except that the provisions of the last two sentences of such Section 12
shall not be applicable to any transfer of Bonds of the Twenty-fourth Series to
a successor Collateral Agent under the Collateral Agreement (and the Company
hereby waives the provisions of such sentences 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 Bonds of the Twenty-fourth Series by the
Collateral Agent, 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 Bonds of the Twenty-fourth Series by the
Collateral Agent).
The Company has appointed The Bank of New York as its
agent to receive Bonds of the Twenty-fourth Series presented or surrendered for
payment, to receive Bonds of the Twenty-fourth Series surrendered for
registration of transfer or exchange and to receive notices and demands to or
upon the Company in respect of the Bonds of the Twenty-fourth Series and the
Indenture; and the corporate trust office of The Bank of New York in the
Borough of Manhattan, The City of New York shall be the office or agency of the
Company in the Borough of Manhattan, The City of New York at which such
presentations, surrenders, notices and demands may be made or served.
Upon the delivery of this Twenty-fourth Supplemental
Indenture, Bonds of the Twenty-fourth Series in the aggregate principal amount
of $90,000,000 (as reduced from time to time in the manner hereinafter
described in subdivisions II and III below, the “
Maximum Principal Amount
”)
are to be issued forthwith and will be Outstanding in addition to the bonds
hereinbefore stated to be Outstanding.
Bonds of the Twenty-fourth Series shall be subject to
the following terms and conditions (including, without limitation, redemption
terms and conditions):
12
(I)
From
time to time after the issuance of the Bonds of the Twenty-fourth Series, and
as Revolving Loans are prepaid and reborrowed subject to and in accordance with
the Credit Agreement, (A) for purposes of determining the amount of
principal payable by the Company with respect to the Bonds of the Twenty-fourth
Series, the unpaid principal amount of the Bonds of the Twenty-fourth Series at
any time shall be deemed to be equal to the Revolving Credit Applicable Share
of the unpaid principal amount of the Revolving Loans at such time, plus, if an
acceleration of the Revolving Loans shall be in effect in accordance with the
Credit Agreement at such time, the amount of cash collateral required to be
provided by the Company pursuant to Section 8 of the Credit Agreement in
respect of Letters of Credit, and (B) for all other purposes of the
Indenture (including, without limitation, the determination of the amount of
principal on which interest is payable and the determination of the principal
amount with respect to which the Collateral Agent, as registered owner, is entitled
to vote or otherwise exercise rights as registered owner), the Bonds of the
Twenty-fourth Series shall be deemed to be “Outstanding” at any time in an
aggregate principal amount equal to the Maximum Principal Amount at such
time. Pursuant to (and by reason of the
provisions of Section 10.2 of) the Credit Agreement, the Administrative Agent
has agreed to submit to the Corporate Trustee (with copies to the Collateral
Agent and the Company), from time to time promptly after the request of the
Corporate Trustee or the Company, a written statement, signed by a person
purporting to be its duly authorized officer (an “
Unpaid Principal Amount
Statement
”) stating the unpaid principal amount of the Revolving Loans
(and, as a consequence, of the principal amount of the Bonds of the
Twenty-fourth Series payable by the Company) as of the date of such Unpaid
Principal Amount Statement, setting forth the portions or amounts of the
Revolving Loans that are Revolving Credit Loans, Swing Line Loans and
unreimbursed drawings under Letters of Credit.
The Corporate Trustee may conclusively presume the statements contained
in each Unpaid Principal Amount Statement to be correct (and the Corporate
Trustee shall be fully protected in relying thereon).
(II)
The
Maximum Principal Amount on and as of the date of original issuance of the
Bonds of the Twenty-fourth Series shall be $90,000,000 (which amount shall be
equal to the Revolving Credit Applicable Share of the Total Revolving Credit
Commitments on and as of such date) and thereafter shall be reduced from time
to time upon each Revolving Credit Commitment Redemption (as hereinafter
defined in subdivision III below) and each Revolving Credit Event of
Default Commitment Termination Redemption (as hereinafter defined in subdivision
III below), in each case, by an amount equal to the aggregate principal amount
of the Bonds of the Twenty-fourth Series that are deemed to have been redeemed
pursuant to such Revolving Credit Commitment Redemption or such Revolving
Credit Event of Default Commitment Termination Redemption.
(III)
Bonds
of the Twenty-fourth Series shall be 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 there is
a permanent reduction or termination of the Revolving Credit Commitments (as
defined in the Credit Agreement) pursuant to Section 2.10 of the Credit
Agreement, Bonds of the Twenty-fourth Series shall be deemed to have
13
been redeemed in an
aggregate principal amount equal to the Revolving Credit Applicable Share of
the amount of such permanent reduction or termination of the Revolving Credit
Commitments pursuant to such Section 2.10 (a “
Revolving Credit
Commitment Redemption
”); (B) on each day on which the Revolving Credit
Commitments are permanently terminated pursuant to Section 8 of the Credit
Agreement, Bonds of the Twenty-fourth Series shall be deemed to have been
redeemed in an aggregate principal amount which, after giving effect to such
termination, results in the Maximum Principal Amount of the Bonds of
Twenty-fourth Series being equal to the Revolving Credit Applicable Share of
the sum of the principal amount of the Revolving Loans then outstanding under
the Credit Agreement and the amount then available to be drawn under Letters of
Credit (a “
Revolving Credit Event of Default Commitment Termination
Redemption
”); and (C) on each day on which the Revolving Loans are
accelerated in accordance with the Credit Agreement (an “
Acceleration
Redemption Date
”), the entire aggregate principal amount of the Bonds of
the Twenty-fourth Series shall be subject to mandatory redemption by the
Company (an “
Acceleration Redemption
”); in each case, without any
necessity for notice or call by the Company or by the Corporate Trustee (such
notice and call being waived by the registered owners of the Bonds of the
Twenty-fourth Series by the acceptance of the Bonds of the Twenty-fourth Series
and in connection with each Redemption Demand hereinafter described);
provided
,
however
, that in the event of a reinstatement of the Revolving Credit
Commitments or a rescission or annulment of the acceleration of the Revolving
Loans pursuant to the Credit Agreement or otherwise, the related Revolving
Credit Event of Default Commitment Termination Redemption or the related
Acceleration Redemption shall be deemed to be rescinded or annulled, without prejudice
to the occurrence of another Revolving Credit Event of Default Commitment
Termination Redemption or another Acceleration Redemption upon and by reason of
a subsequent termination of the Revolving Credit Commitments pursuant to
Section 8 of the Credit Agreement or another acceleration of the Revolving
Loans in accordance with the Credit Agreement.
Acceleration Redemption of the Bonds of the Twenty-fourth Series on an
Acceleration Redemption Date shall be at a redemption price equal to the
principal amount (determined in accordance with the provisions of
subdivision II above) of the Bonds of the Twenty-fourth Series that is
then payable by the Company (without premium), together with interest accrued
on said principal to and including such Acceleration Redemption Date
(collectively, an “
Acceleration Redemption Amount
”); and such
Acceleration Redemption Amount shall be due and payable on such Acceleration
Redemption Date. In the event of any
failure by the Company to pay when due an Acceleration Redemption Amount,
interest shall accrue on such unpaid Acceleration Redemption Amount at the
rates (and in amounts equal to the Revolving Credit Applicable Share of the
amounts) of interest that accrue on the corresponding unpaid principal of and
interest on the Revolving Loans in accordance with the Credit Agreement.
The Corporate Trustee may conclusively presume that no
redemption of Bonds of the Twenty-fourth Series is deemed to have occurred or
resulted in a reduction of the Maximum Principal Amount (in the case of a
Revolving Credit Commitment Redemption or a Revolving Credit Event of Default
Commitment Termination Redemption) or is required to occur (in the case of an
Acceleration Redemption) unless and until it shall have received a written
notice from the Administrative Agent, signed by a person purporting to be its
duly
14
authorized officer,
stating that the Revolving Credit Commitments have been permanently reduced or
terminated pursuant to Section 2.10 of the Credit Agreement or the Revolving
Credit Commitments have been permanently terminated pursuant to Section 8 of
the Credit Agreement or the Revolving Loans have been accelerated in accordance
with the Credit Agreement (a “
Redemption Demand
”). Each Redemption Demand also shall (i) state
the date on which the Revolving Credit Commitments were permanently reduced or
terminated pursuant to Section 2.10 of the Credit Agreement or the Revolving
Credit Commitments were permanently terminated pursuant to Section 8 of the
Credit Agreement or the Revolving Loans were accelerated, (ii) the amount by
which the Revolving Credit Commitments were so permanently reduced or
terminated and the Maximum Principal Amount (determined in accordance with this
Twenty-fourth Supplemental Indenture) after giving effect to the related and
deemed redemption of Bonds of the Twenty-fourth Series or the principal amount
of the Revolving Loans subject to acceleration on such date, (iii) the
principal amount of Bonds of the Twenty-fourth Series that are deemed to have
been redeemed or are to be redeemed on such date in accordance with this
Twenty-fourth Supplemental Indenture by reason of such permanent reduction or
termination of the Revolving Credit Commitments and such reduction of the
Maximum Principal Amount or such acceleration of the Revolving Loans, and (iv)
in the case of an Acceleration Redemption, the Acceleration Redemption Amount
payable with respect to the Bonds of the Twenty-fourth Series (determined in
accordance with this Twenty-fourth Supplemental Indenture) and setting forth
the amounts of the respective portions thereof representing principal of and
interest on the Bonds of the Twenty-fourth Series. Each Redemption Demand shall be deemed to
constitute a written waiver by the Collateral Agent, as registered owner of all
Bonds of the Twenty-fourth Series then Outstanding, of notice of redemption and
call for redemption by the Company or the Corporate Trustee of the Bonds of the
Twenty-fourth Series subject to redemption as described in such Redemption
Demand. The Corporate Trustee may
conclusively presume the statements contained in each Redemption Demand to be
correct (and the Corporate Trustee shall be fully protected in relying
thereon).
The Corporate Trustee may conclusively presume that no
rescission or annulment of a Revolving Credit Event of Default Commitment
Termination Redemption or an Acceleration Redemption (in respect of which the
Corporate Trustee has received a Redemption Demand) 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 termination of the Revolving Credit Commitments pursuant to Section 8 of
the Credit Agreement or the acceleration of the Revolving Loans has been
rescinded or annulled in accordance with the Credit Agreement or otherwise (a “
Rescission
Notice
”). Each Rescission Notice
also shall state the date on which the termination of the Revolving Credit
Commitments pursuant to Section 8 of the Credit Agreement or the acceleration
of the Revolving Loans was rescinded or annulled in accordance with the Credit
Agreement or otherwise and, as consequence, the redemption of the Bonds of the
Twenty-fourth Series was rescinded or annulled in accordance with this
Twenty-fourth Supplemental Indenture.
The Corporate Trustee may conclusively presume the statements contained
in any Rescission Notice to be correct (and the Corporate Trustee shall be
fully protected in relying thereon).
15
Pursuant to (and by reason of the provisions of
Section 10.2 of) the Credit Agreement, the Administrative Agent has agreed to
submit to the Corporate Trustee (with copies to the Collateral Agent and the
Company) (i) a Redemption Demand with respect to, and in connection with,
each event that gives rise to a redemption (deemed or actual) of Bonds of the
Twenty-fourth Series, and (ii) a Rescission Notice in connection with any
event that gives rise to the rescission or annulment of a Revolving Credit
Event of Default Commitment Termination Redemption or an Acceleration
Redemption. Pursuant to the Collateral
Agreement, the Collateral Agent has agreed, upon written request of the Company
and so long as no Default or Event of Default described in Section 8(f) of
the Credit Agreement shall have occurred and be continuing, to surrender or
exchange its Bond or Bonds of the Twenty-fourth Series, from time to time
(including, without limitation, promptly following each redemption of Bonds of
the Twenty-fourth Series that is deemed to occur (in the case of a Revolving
Credit Commitment Redemption or a Revolving Credit Event of Default Commitment
Termination Redemption) or that occurs (in the case of an Acceleration
Redemption) in accordance with this Twenty-fourth Supplemental Indenture), so
that at all times the Collateral Agent is holding one or more Bond or Bonds of
the Twenty-fourth Series in an aggregate principal amount equal to, but not in
excess of, the Maximum Principal Amount of the Bonds of the Twenty-fourth
Series at such times.
(IV)
It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything herein or in any Bond of the Twenty-fourth Series to the contrary
(other than the provisions of subdivision VI below), each payment of
principal of or interest on the Bonds of the Twenty-fourth Series that becomes
due and payable on any day in accordance with this Twenty-fourth Supplemental
Indenture (whether by reason of stated due date, acceleration, redemption or
otherwise) shall correspond to, and be equal to the Revolving Credit Applicable
Share of, a payment of Revolving Credit Obligations that becomes due and
payable on such day in accordance with the Credit Agreement.
(V)
The
obligation of the Company to make each payment of principal of or interest on
the Bonds of the Twenty-fourth Series that becomes due and payable in
accordance with this Twenty-fourth Supplemental Indenture (A) shall be
fully satisfied and discharged if the corresponding payment of the Revolving
Credit Obligations shall have been fully paid under and in accordance with the
Credit Agreement, and (B) shall be partially satisfied and discharged if
the corresponding payment of the Revolving Credit Obligations shall have been
partially paid under and in accordance with the Credit Agreement (such partial
satisfaction and discharge with respect to the Bonds of the Twenty-fourth
Series to be in an amount equal to the Revolving Credit Applicable Share of the
amount of such partial payment with respect to the Revolving Credit
Obligations). The Corporate Trustee may
conclusively presume that the obligation of the Company to make payments with
respect to the principal of and interest on the Bonds of the Twenty-fourth Series
has been fully satisfied and discharged unless and until the Corporate 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
Revolving Credit Obligations which became due and payable in accordance with
the Credit Agreement, (ii) the amount and date of such payment of
Revolving Credit
16
Obligations 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 Bonds of the
Twenty-fourth Series which, in accordance with this Twenty-fourth Supplemental
Indenture, has not been satisfied and discharged by reason of such failure of
the Company. The Corporate Trustee may
conclusively presume the statements contained in any such notice from the
Administrative Agent to be correct unless and until the Corporate Trustee shall
receive a subsequent and/or modified notice from the Administrative Agent
pursuant to and in accordance with this subdivision (V) (and the Corporate
Trustee shall be fully protected in relying thereon). Without limitation of the foregoing, and for
the avoidance of any doubt, it is expressly stated that the Corporate Trustee
shall not be responsible for (i) the calculation of interest on the Bonds
of the Twenty-fourth Series, or (ii) the determination of any amount
(including, without limitation, any amount of the Revolving Credit Obligations)
that is payable or paid under the Credit Agreement.
(VI)
Nothing
herein or in any of the Bonds of the Twenty-fourth Series (including, without
limitation, any reference to the principal payable with respect to the Bonds of
the Twenty-fourth Series being determined on the basis of the Revolving Credit
Applicable Share of the principal payable with respect to the Revolving Credit
Obligations) shall, or shall be deemed or construed to, increase the aggregate
principal amount of the Bonds of the Twenty-fourth Series that are Outstanding
at any time to an amount in excess of the Maximum Principal Amount at such
time.
ARTICLE II
Twenty-fifth Series of
Bonds
SECTION 2.1 There shall be a series of bonds designated “Collateral
(2004) Series B, due 2011” (such series herein sometimes referred to as
the “
Twenty-fifth Series
” and the bonds of such series herein sometimes
referred to as the “
Bonds of the Twenty-fifth Series
”) each of which
shall also bear the descriptive title “First Mortgage Bond”, and the form
thereof, which as established by Resolution of the Board of Directors of the
Company, shall be substantially as provided in
Exhibit B
attached
hereto and, thereby, shall contain suitable provisions with respect to the
matters hereinafter in this Section specified.
Bonds of the Twenty-fifth Series shall be issued to
the Collateral Agent to secure the obligations of the Company to pay when due
the Term Loan Applicable Share (as hereinafter defined) of the principal of and
interest on the term loans (the “
Term Loans
”) made and outstanding under
the Credit Agreement.
As used herein, “
Term Loan Applicable Share
”
means, as of any day, a fraction (expressed as a percentage rounded to the
second decimal place), (i) the numerator of which is the aggregate
principal amount of the Bonds of the Twenty-fifth Series that are Outstanding
on such day, and (ii) the denominator of which is the sum of (a) the
aggregate principal amount of the Bonds of the Twenty-fifth Series that are
Outstanding on such day, plus (b) the aggregate principal amount of the
First Mortgage Bonds, Collateral (2004) Series B, due 2011, of the Company
(the “
South Dakota Term Loan Bonds
”) that are
17
outstanding on such day
under the Company’s South Dakota Mortgage.
Simultaneously with the issuance and registration of the Bonds of the
Twenty-fifth Series in the name of the Collateral Agent (for the same purpose),
the South Dakota Term Loan Bonds will be issued to the Collateral Agent to
secure the obligations of the Company to pay when due a portion of the
principal of and interest on the Term Loans.
Initially, the Term Loan Applicable Share will be 72.00% (being the
expression as a percentage (rounded to the second decimal place) of a fraction,
the numerator of which is $72,000,000 (the aggregate principal amount of the
Bonds of the Twenty-fifth Series that are to be issued and become Outstanding)
and the denominator of which is $100,000,000 (the sum of $72,000,000, the
aggregate principal amount of the Bonds of the Twenty-fifth Series that are to
be issued and become Outstanding, plus $28,000,000, the aggregate principal
amount of the South Dakota Term Loan Bonds that are to be issued and become outstanding
under the South Dakota Mortgage simultaneously with the issuance of the Bonds
of the Twenty-fifth Series). Pursuant to
the Collateral Agreement, the Collateral Agent has agreed to furnish to the
Corporate Trustee (with a copy to the Company) as soon as practicable after any
change in the Term Loan Applicable Share, a certificate, signed by a person
purporting to be its duly authorized officer, notifying the Corporate Trustee
of such change in the Term Loan Applicable Share (a “
Term Loan Applicable
Share Certificate
”). Each Term Loan
Applicable Share Certificate shall set forth (i) the changed Term Loan
Applicable Share, (ii) the date such change occurred, (iii) the
aggregate principal amount of the Bonds of the Twenty-fifth Series then
Outstanding, and (iv) the aggregate principal amount of the South Dakota
Term Loan Bonds then outstanding under the South Dakota Mortgage. The Corporate Trustee may conclusively
presume that the Term Loan Applicable Share is 72.00% unless and until the
Corporate Trustee receives a Term Loan Applicable Share Certificate. Following receipt by the Corporate Trustee of
a Term Loan Applicable Share Certificate, the Corporate Trustee may
conclusively presume that the Term Loan Applicable Share is as set forth in
such Term Loan Applicable Share Certificate unless and until the Corporate
Trustee receives a subsequent Term Loan Applicable Share Certificate (and the
Corporate Trustee shall be fully protected in relying thereon).
Bonds of the Twenty-fifth Series shall mature on
November 1, 2011 (the “
Term Loan Maturity Date
”), with (i) an
installment of the principal of the Bonds of the Twenty-fifth Series in an
amount equal to $180,000 (said amount representing one quarter of one percent
(0.25%) of the original aggregate principal amount of the Bonds of the
Twenty-fifth Series) to be payable on each March 31, June 30,
September 30 and December 31, commencing March 31, 2005 and
continuing through and including September 30, 2010, (ii) an
installment of the principal amount of the Bonds of the Twenty-fifth Series in
an amount equal to $16,920,000 (said amount representing twenty-three and
one-half percent (23.5%) of the original aggregate principal amount of the
Bonds of the Twenty-fifth Series) to be payable on December 31, 2010,
March 31, 2011 and June 30, 2011, and (iii) the balance of
the principal of the Bonds of the Twenty-fifth Series to be payable on the Term
Loan Maturity Date (in each case, unless an equal installment or balance of
principal of the Term Loans is not due and payable on such day or on the Term
Loan Maturity Date, as applicable, in accordance with the Credit Agreement by
reason of prior prepayment of the Term Loans (in which event, there shall be
due and payable on the
18
Bonds of the Twenty-fifth
Series on such day or on the Term Loan Maturity Date, as applicable, an amount
of principal of said Bonds equal to the Term Loan Applicable Share of the
amount of principal of the Term Loans that is payable on such day or on the
Term Loan Maturity Date, as applicable, in accordance with the Credit
Agreement)); they shall be issued as fully registered bonds in denominations of
One Thousand Dollars or in any integral multiple of One Dollar in excess of One
Thousand Dollars; the unpaid principal amount of the Bonds of the Twenty-fifth
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 Term 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 Term Loans), payable on each day on which interest is
payable on the Term Loans in accordance with the Credit Agreement (and in an
amount equal to the Term Loan Applicable Share of the amount of interest that
is payable on the Term 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; 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. Bonds of the Twenty-fifth Series
shall be dated as in Section 10 of the Mortgage provided.
For the avoidance of any doubt, it is expressly stated
that scheduled amortization payments with respect to the Bonds of the
Twenty-fifth Series (as specified for the Bonds of the Twenty-fifth Series
prior to the Term Loan Maturity Date pursuant to the preceding paragraph of
this Section 2.1) shall not constitute a redemption in part of the Bonds of the
Twenty-fifth Series for purposes of Section 53 of the Mortgage (as
supplemented) (and, therefore, surrender of the Bonds of the Twenty-fifth
Series shall not be a condition to the receipt by the registered owners of the
Bonds of the Twenty-fifth Series of such scheduled amortization payments).
At the option of the registered owner, any Bonds of
the Twenty-fifth Series, upon surrender thereof for cancellation at the office
or agency of the Company in the Borough of Manhattan, The City of New York,
shall be exchangeable for a like aggregate principal amount of bonds of the
same series of other authorized denominations.
Bonds of the Twenty-fifth Series shall not be
transferable except to any successor Collateral Agent under the Collateral
Agreement. As a condition precedent to
any transfer of the Bonds of the Twenty-fifth Series by the Collateral Agent,
the Collateral Agent shall submit to the Company, the Corporate Trustee and, if
applicable, any bond registrar or transfer agent for the Bonds of the
Twenty-fifth Series (in addition to all other documents and instruments
required to be submitted pursuant to the Mortgage) a 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 (and the Corporate Trustee may
conclusively presume the statements in any such certificate of the Collateral
Agent to be correct and shall be fully protected in relying thereon).
19
Any transfer of Bonds of the Twenty-fifth Series
(i) shall be subject to the provisions of Section 12 of the Mortgage,
except that the provisions of the last two sentences of such Section 12 shall
not be applicable to any transfer of Bonds of the Twenty-fifth Series to a
successor Collateral Agent under the Collateral Agreement (and the Company
hereby waives the provisions of such sentences 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 Bonds of the Twenty-fifth Series by the
Collateral Agent, 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 Bonds of the Twenty-fifth Series by the
Collateral Agent).
The Company has appointed The Bank of New York as its
agent to receive Bonds of the Twenty-fifth Series presented or surrendered for
payment, to receive Bonds of the Twenty-fifth Series surrendered for
registration of transfer or exchange and to receive notices and demands to or
upon the Company in respect of the Bonds of the Twenty-fifth Series and the
Indenture; and the corporate trust office of The Bank of New York in the
Borough of Manhattan, The City of New York shall be the office or agency of the
Company in the Borough of Manhattan, The City of New York at which such
presentations, surrenders, notices and demands may be made or served.
Upon the delivery of this Twenty-fourth Supplemental
Indenture, Bonds of the Twenty-fifth Series in the aggregate principal amount
of $72,000,000 are to be issued forthwith and will be Outstanding in addition
to the bonds hereinbefore stated to be Outstanding.
Bonds of the Twenty-fifth Series shall be subject to
the following redemption and other terms and conditions:
(I)
Bonds
of the Twenty-fifth Series shall be 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 Term Loans are
prepaid in accordance with the Credit Agreement, Bonds of the Twenty-fifth
Series shall be deemed to have been redeemed in an aggregate principal amount
equal to the Term Loan Applicable Share of the aggregate principal amount of
the Term Loans that are so prepaid on such day (a “
Term Loan Prepayment
Redemption
”); and (B) on each day on which the Term Loans are
accelerated in accordance with the Credit Agreement (an “
Acceleration Redemption
Date
”), the entire aggregate principal amount of the Bonds of the
Twenty-fifth Series shall be subject to mandatory redemption by the Company (an
“
Acceleration Redemption
”); in each case, without any necessity for
notice or call by the Company or by the Corporate Trustee (such notice and call
being waived by the registered owners of the Bonds of the Twenty-fifth Series
by the acceptance of the Bonds of the Twenty-fifth Series and in connection
with each
20
Redemption Demand
hereinafter described);
provided
,
however
, that in the event of a
rescission or annulment of an acceleration of the Term Loans pursuant to the
Credit Agreement or otherwise, the related Acceleration Redemption shall be
deemed to be rescinded or annulled (without prejudice to the occurrence of
another Acceleration Redemption upon and by reason of a subsequent acceleration
of the Term Loans in accordance with the Credit Agreement). Acceleration Redemption of Bonds of the
Twenty-fifth Series on an Acceleration Redemption Date shall be at a redemption
price equal to the principal amount of the Bonds of the Twenty-fifth Series
(without premium), together with interest accrued on said principal to and
including such Acceleration Redemption Date (collectively, an “
Acceleration
Redemption Amount
”); and such Acceleration Redemption Amount shall be due
and payable on the Bonds of the Twenty-fifth Series on such Acceleration
Redemption Date. In the event of any
failure by the Company to pay when due the Acceleration Redemption Amount with
respect to an Acceleration Redemption of Bonds of the Twenty-fifth Series,
interest shall accrue on such unpaid Acceleration Redemption Amount at the
rates (and in amounts equal to the Term Loan Applicable Share of the amounts)
of interest that accrue on the corresponding unpaid principal of and interest
on the Term Loans in accordance with the Credit Agreement.
The Corporate Trustee may conclusively presume that no
redemption of Bonds of the Twenty-fifth Series is deemed to have occurred (in
the case of a Term Loan Prepayment Redemption) or is required (in the case of
an Acceleration Redemption) 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 Term Loans have been prepaid or have been
accelerated, in either case, in
accordance with the Credit Agreement (a “
Redemption Demand
”). Each Redemption Demand also shall state
(i) the date on which the Term Loans were prepaid or accelerated in
accordance with the Credit Agreement, (ii) the principal amount of the
Term Loans so prepaid or accelerated on such date, (iii) the principal
amount of Bonds of the Twenty-fifth Series that are deemed to have been redeemed
or are to be redeemed on such date in accordance with this Twenty-fourth
Supplemental Indenture by reason of such prepayment or acceleration, and
(iv) in the case of an Acceleration Redemption, the Acceleration
Redemption Amount payable with respect to the Bonds of the Twenty-fifth Series
(determined in accordance with this Twenty-fourth Supplemental Indenture) and
setting forth the amounts of the respective portions thereof representing
principal of and interest on the Bonds of the Twenty-fifth Series. Each Redemption Demand shall be deemed to
constitute a written waiver by the Collateral Agent, as registered owner of all
Bonds of the Twenty-fifth Series then Outstanding, of notice of redemption and
call for redemption by the Company or the Corporate Trustee of the Bonds of the
Twenty-fifth Series deemed redeemed or subject to redemption as described in
such Redemption Demand. The Corporate
Trustee may conclusively presume the statements contained in each Redemption
Demand to be correct (and the Corporate Trustee shall be fully protected in
relying thereon).
The Corporate Trustee may conclusively presume that no
rescission or annulment of an Acceleration Redemption (in respect of which the
Corporate Trustee has received a Redemption Demand) 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
21
officer, stating that the
acceleration of the Term Loans has been rescinded or annulled in accordance
with the Credit Agreement or otherwise (a “
Rescission Notice
”). Each Rescission Notice also shall state the
date on which the acceleration of the Term Loans was rescinded or annulled in
accordance with the Credit Agreement or otherwise and, as consequence, the
redemption of the Bonds of the Twenty-fifth Series was rescinded or annulled in
accordance with this Twenty-fourth Supplemental Indenture. The Corporate Trustee may conclusively
presume the statements contained in any Rescission Notice to be correct (and
the Corporate Trustee shall be fully protected in relying thereon).
Pursuant to (and by reason of the provisions of
Section 10.2 of) the Credit Agreement, the Administrative Agent has agreed
to submit to the Corporate Trustee (with copies to the Collateral Agent and the
Company) (i) a Redemption Demand with respect to, and in connection with,
each event that gives rise to a redemption (deemed or actual) of Bonds of the
Twenty-fifth Series, and (ii) a Rescission Notice in connection with any
event that gives rise to the rescission or annulment of an Acceleration
Redemption. Pursuant to the Collateral
Agreement, the Collateral Agent has agreed, upon written request of the Company
and so long as no Default or Event of Default described in Section 8(f) of
the Creidt Agreement shall have occurred and be continuing, to surrender or
exchange its Bond or Bonds of the Twenty-fifth Series, from time to time
(including, without limitation, promptly following each redemption (deemed or
actual) of Bonds of the Twenty-fifth Series), so that at all times the
Collateral Agent is holding one or more Bond or Bonds of the Twenty-fifth
Series in an aggregate principal amount equal to, but not in excess of, the
aggregate principal amount of the Bonds of the Twenty-fifth Series that are
then Outstanding (and the Term Loan Applicable Share of the aggregate principal
amount of the Term Loans that are then outstanding under the Credit Agreement).
(II)
It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything herein or in any Bond of the Twenty-fifth Series to the contrary
(other than the provisions of subdivision IV below), each payment of principal
of or interest on the Bonds of the Twenty-fifth Series that becomes due and
payable on any day in accordance with this Twenty-fourth Supplemental Indenture
(whether by reason of stated due date, acceleration, redemption or otherwise)
shall correspond to, and be equal to the Term Loan Applicable Share of, a payment
of principal of or interest on the Term Loans that becomes due and payable on
such day in accordance with the Credit Agreement.
(III)
The
obligation of the Company to make each payment of principal of or interest on
the Bonds of the Twenty-fifth Series that becomes due and payable in accordance
with this Twenty-fourth Supplemental Indenture (A) shall be fully
satisfied and discharged if the corresponding payment of the principal of or
interest on the Term Loans shall have been fully paid under and in accordance
with the Credit Agreement, and (B) shall be partially satisfied and
discharged if the corresponding payment of the principal of or interest on the
Term Loans shall have been partially paid under and in accordance with the
Credit Agreement (such partial satisfaction and discharge with respect to the
Bonds of the Twenty-fifth Series to be in an amount equal to the Term Loan
Applicable Share of the amount of such partial payment with respect to the Term
Loans). The Corporate Trustee may
conclusively presume that the obligation of the Company to make payments with
respect to
22
the principal of and
interest on the Bonds of the Twenty-fifth Series has been fully satisfied and
discharged unless and until the Corporate 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 of and/or interest
on the Term 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 Term 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 Bonds of the Twenty-fifth Series which, in accordance with this
Twenty-fourth Supplemental Indenture, has not been satisfied and discharged by
reason of such failure of the Company.
The Corporate Trustee may conclusively presume the statements contained
in any such notice from the Administrative Agent to be correct unless and until
the Corporate Trustee shall receive a subsequent and/or modified notice from
the Administrative Agent pursuant to and in accordance with this
subdivision (III) (and the Corporate Trustee shall be fully protected in
relying thereon). Without limitation of
the foregoing, and for the avoidance of any doubt, it is expressly stated that
the Corporate Trustee shall not be responsible for (i) the calculation of
interest on the Bonds of the Twenty-fifth Series, or (ii) the
determination of any amount (including, without limitation, any principal of or
interest on the Term Loans) that is payable or paid under the Credit Agreement.
(IV)
Nothing
herein or in any of the Bonds of the Twenty-fifth Series (including, without
limitation, any reference to the principal payable with respect to the Bonds of
the Twenty-fifth Series being determined on the basis of the Term Loan
Applicable Share of the principal payable with respect to the Term Loans)
shall, or shall be deemed or construed to, (A) increase the aggregate
principal amount of the Bonds of the Twenty-fifth Series that are Outstanding
from time to time, (B) cause or permit an amount of principal of the Bonds
of the Twenty-fifth Series to be or to become due and payable which, when added
to all other principal of such Bonds theretofore paid, exceeds $72,000,000, or
(C) cause or permit to be or to become due and payable interest on the
Bonds of the Twenty-fifth Series which is payable on any principal of the Bonds
of the Twenty-fifth Series that is in excess of the principal of the Bonds of
the Twenty-fifth Series as restricted pursuant to the preceding clauses (A) and
(B).
ARTICLE III
Twenty-sixth Series of
Bonds
SECTION 3.1 There shall be a series of bonds designated “Collateral
(2004) Series C, due 2014” (such
series herein sometimes referred to as the “
Twenty-sixth Series
” and the
bonds of such series herein sometimes referred to as the “
Bonds of the
Twenty-sixth Series
”) each of which shall also bear the descriptive title “First
Mortgage Bond”, and the form thereof, which as established by Resolution of the
Board of Directors of the Company, shall be substantially as provided in
Exhibit C
attached hereto and, thereby, shall contain suitable provisions with respect to
the matters hereinafter in this Section specified.
23
Bonds of the Twenty-sixth Series shall be issued to
and registered in the name of U.S. Bank, National Association, as trustee
(together with its successors in such capacity, the “
Senior Note Trustee
”)
under the Indenture, dated as of November 1, 2004, between the
Company and the Senior Note Trustee, as supplemented and amended by
Supplemental Indenture No. 1, dated as of November 1, 2004 (as so
supplemented and amended and as may be further supplemented, amended or
otherwise modified in accordance with its terms, the “
Senior Note Indenture
”),
to be owned and held by the Senior Note Trustee under the terms of the Senior
Note Indenture as security for the payment of the principal of, premium (if
any) and interest on a series of senior secured notes of the Company issued
pursuant to the Senior Note Indenture designated “Senior Secured Notes, 5.875%
Series A due 2014” (the “
Series A Senior Notes
”) and, if and
to the extent issued and delivered in exchange for the Series A Senior
Notes subject to and in accordance with the Senior Note Indenture, a series of
senior secured notes of the Company designated “Senior Secured Notes, 5.875%
Exchange Series A due 2014” (the “
Series A Exchange Notes
”). The Series A Notes and, if and to the extent
issued in exchange for Series A Senior Notes subject to and in accordance with
the Senior Note Indenture, the Series A Exchange Notes are referred to
hereinafter, collectively, as the “
Senior Notes
”. For purposes of the Senior Note Indenture,
Bonds of the Twenty-sixth Series, together with the South Dakota Senior Notes
Bonds (as such term is hereinafter defined), are “the ‘related’ or ‘corresponding’
First Mortgage Bonds” with respect to the Senior Notes.
As used herein, “
Senior Notes 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 Bonds of the Twenty-sixth Series that are Outstanding
on such day, and (ii) the denominator of which is the sum of (a) the
aggregate principal amount of the Bonds of the Twenty-sixth Series that are
Outstanding on such day, plus (b) the aggregate principal amount of the
First Mortgage Bonds, Collateral (2004) Series C, due 2014, of the Company
(the “
South Dakota Senior Notes Bonds
”) that are outstanding on such day
under the South Dakota Mortgage.
Simultaneously with the issuance and registration of the Bonds of the
Twenty-sixth Series in the name of the Senior Note Trustee (for the same
purpose), the South Dakota Senior Notes Bonds will be issued to and registered
in the name of the Senior Note Trustee, to be owned and held by the Senior Note
Trustee under the terms of the Senior Note Indenture as security for the
payment of the principal of, premium (if any) and interest on the Senior Notes. Initially, the Applicable Share will be
71.55555556% (being the expression as a percentage (rounded to the eighth
decimal place) of a fraction, the numerator of which is $161,000,000 (the
aggregate principal amount of the Bonds of the Twenty-sixth Series that are to
be issued and become Outstanding) and the denominator of which is $225,000,000
(the sum of $161,000,000, the aggregate principal amount of the Bonds of the
Twenty-sixth Series that are to be issued and become Outstanding, plus
$64,000,000, the aggregate principal amount of the South Dakota Senior Notes
Bonds that are to be issued and become outstanding under the South Dakota
Mortgage simultaneously with the issuance of the Bonds of the Twenty-sixth
Series). Pursuant to the Senior Note
Indenture, the Senior Note Trustee has agreed to furnish to the Corporate
Trustee (with a copy to the Company) as soon as practicable after any change in
the Senior Notes Applicable Share, a certificate, signed by a person purporting
to be its duly
24
authorized officer,
notifying the Corporate Trustee of such change in the Senior Notes Applicable
Share (a “
Senior Notes Applicable Share Certificate
”). Each Senior Notes Applicable Share
Certificate shall set forth (i) the changed Senior Notes Applicable Share,
(ii) the date such change occurred, (iii) the aggregate principal
amount of the Bonds of the Twenty-sixth Series then Outstanding, and
(iv) the aggregate principal amount of the South Dakota Senior Notes Bonds
then outstanding under the South Dakota Mortgage. The Corporate Trustee may conclusively
presume that the Senior Notes Applicable Share is 71.55555556% unless and until
the Corporate Trustee receives a Senior Notes Applicable Share
Certificate. Following receipt by the
Corporate Trustee of a Senior Notes Applicable Share Certificate, the Corporate
Trustee may conclusively presume that the Senior Notes Applicable Share is as
set forth in such Senior Notes Applicable Share Certificate unless and until
the Corporate Trustee receives a subsequent Senior Notes Applicable Share
Certificate (and the Corporate Trustee shall be fully protected in relying
thereon).
Bonds of the Twenty-sixth Series shall mature on
November 1, 2014 (the “
Senior Notes Maturity Date
”), with the
unpaid principal of the Bonds of the Twenty-sixth Series to be due and payable
on the Senior Notes Maturity Date; they shall be issued as fully registered
bonds in denominations of One Thousand Dollars or in any integral multiple of
One Dollar in excess of One Thousand Dollars; the unpaid principal amount of
the Bonds of the Twenty-sixth Series shall bear interest at the rate of five
and seven-eighths percent 5.875% per annum (calculated in the same manner as
interest is calculated on the Senior Notes in accordance with the Senior Note
Indenture), payable semiannually on the first (1st) day of each May and
November, commencing on May 1, 2005 and continuing until the
principal of the Bonds of the Twenty-sixth Series is paid (or provided for in
accordance with the Senior Note Indenture), to the Senior Note Trustee, as the
registered owner, without regard to, or necessity for, any record date;
principal of, (premium (if any) 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. Bonds of the Twenty-sixth Series shall be
dated as in Section 10 of the Mortgage provided.
At the option of the registered owner, any Bonds of
the Twenty-sixth Series, upon surrender thereof for cancellation at the office
or agency of the Company in the Borough of Manhattan, The City of New York,
shall be exchangeable for a like aggregate principal amount of bonds of the
same series of other authorized denominations.
Bonds of the Twenty-sixth Series shall not be
transferable except to any successor Senior Note Trustee under the Senior Note
Indenture. As a condition precedent to any
transfer of the Bonds of the Twenty-sixth Series by the Senior Note Trustee,
the Senior Note Trustee shall submit to the Company, the Corporate Trustee and,
if applicable, any bond registrar or transfer agent for the Bonds of the
Twenty-sixth Series (in addition to all other documents and instruments
required to be submitted pursuant to the Mortgage) a certificate of the Senior
Note Trustee, signed by a person purporting to be its duly authorized officer,
certifying that the transferee in such transfer is a successor Senior Note
Trustee under the Senior Note Indenture (and the Corporate Trustee may
conclusively presume the
25
statements in any such
certificate of the Senior Note Trustee to be correct and shall be fully
protected in relying thereon).
Any transfer of Bonds of the Twenty-sixth Series
(i) shall be subject to the provisions of Section 12 of the Mortgage,
except that the provisions of the last two sentences of such Section 12 shall
not be applicable to any transfer of Bonds of the Twenty-sixth Series to a
successor Senior Note Trustee under the Senior Note Indenture (and the Company
hereby waives the provisions of such sentences 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 Bonds of the Twenty-sixth Series by the Senior
Note Trustee, 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 Bonds of the Twenty-sixth Series by the
Senior Note Trustee.
The Company has appointed The Bank of New York as its
agent to receive Bonds of the Twenty-sixth Series presented or surrendered for
payment, to receive Bonds of the Twenty-sixth Series surrendered for
registration of transfer or exchange and to receive notices and demands to or
upon the Company in respect of the Bonds of the Twenty-sixth Series and the
Indenture; and the corporate trust office of The Bank of New York in the
Borough of Manhattan, The City of New York shall be the office or agency of the
Company in the Borough of Manhattan, The City of New York at which such
presentations, surrenders, notices and demands may be made or served.
Upon the delivery of this Twenty-fourth Supplemental
Indenture, Bonds of the Twenty-sixth Series in the aggregate principal amount
of $161,000,000 are to be issued forthwith and will be Outstanding in addition
to the bonds hereinbefore stated to be Outstanding.
Bonds of the Twenty-sixth Series shall be subject to
the following redemption and other terms and conditions:
(I) Bonds
of the Twenty-sixth Series shall be 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 Senior
Notes become due and payable in accordance with Section 405 of the Senior Note
Indenture by reason of redemption in accordance with the Senior Note Indenture
(a “
Senior Notes Redemption Payment Date
”), Bonds of the Twenty-sixth
Series shall be subject to mandatory redemption by the Company in an aggregate
principal amount equal to the Senior Notes Applicable Share of the aggregate
principal amount of the Senior Notes that become so due and payable on such
Senior Notes Redemption Payment Date (a “
Corresponding Redemption
”); and
(B) on each day on which the Senior Notes become due and payable in accordance
with Section 702 of the Senior Note
26
Indenture by reason of
acceleration of the Senior Notes in accordance with the Senior Note Indenture
(a “
Senior Notes Acceleration Payment Date
”), the entire aggregate
principal amount of the Bonds of the Twenty-sixth Series shall be subject to
mandatory redemption by the Company (an “
Acceleration Redemption
”); in
each case, without any necessity for notice or call by the Company or by the
Corporate Trustee (such notice and call being waived by the registered owners
of the Bonds of the Twenty-sixth Series by the acceptance of the Bonds of the
Twenty-sixth Series and in connection with each Redemption Demand hereinafter
described);
provided
,
however
, that in the event of a rescission
or annulment of an acceleration of the Senior Notes pursuant to the Senior Note
Indenture, the related Acceleration Redemption shall be deemed to be rescinded
or annulled (without prejudice to the occurrence of another Acceleration Redemption
upon and by reason of a subsequent acceleration of the Senior Notes in
accordance with the Senior Note Indenture).
Each Corresponding Redemption of Bonds of the
Twenty-sixth Series on a Senior Notes Redemption Payment Date shall be at a
redemption price equal to the redemption price payable in connection with the
redemption of Senior Notes to which it corresponds (consisting of principal of
and, if applicable to such redemption of Senior Notes in accordance with the
Senior Note Indenture, premium on such Senior Notes), together with interest
accrued on the principal included in such redemption price to such Senior Notes
Redemption Payment Date (a “
Corresponding Redemption Amount
”); and such
Corresponding Redemption Amount shall be due and payable on such Senior Notes
Redemption Payment Date. Each
Acceleration Redemption of Bonds of the Twenty-sixth Series on a Senior Notes
Acceleration Payment Date shall be at a redemption price equal to the principal
amount of the Bonds of the Twenty-sixth Series (without premium), together with
interest accrued on said principal to the date of redemption (an “
Acceleration
Redemption Amount
”); and such Acceleration Redemption Amount shall be due
and payable on such Senior Notes Acceleration Payment Date. In the event of any failure by the Company to
pay when due the Corresponding Redemption Amount with respect to a
Corresponding Redemption of Bonds of the Twenty-sixth Series or the
Acceleration Redemption Amount with respect to an Acceleration Redemption of
Bonds of the Twenty-sixth Series, interest shall accrue on such unpaid
Corresponding Redemption Amount or such unpaid Acceleration Redemption Amount
at the rates (and in amounts equal to the Senior Notes Applicable Share of the
amounts) of interest that accrue on the corresponding unpaid principal of,
premium (if any) and interest on the Senior Notes in accordance with the Senior
Note Indenture.
The Corporate Trustee may conclusively presume that no
redemption of Bonds of the Twenty-sixth Series is required unless and until it
shall have received a written notice from the Senior Note Trustee, signed by a
person purporting to be its duly authorized officer, stating that Senior Notes
became due and payable pursuant to Section 405 or 702 of the Senior Note
Indenture by reason of redemption or acceleration in accordance with the Senior
Note Indenture (a “
Redemption Demand
”).
Each Redemption Demand also shall state (i) the date on which Senior
Notes became due and payable by reason of redemption or acceleration in accordance
with the Senior Note Indenture, (ii) the principal amount of the Senior Notes
that became so due and payable on such date, (iii) the principal amount of
27
Bonds of the Twenty-sixth
Series to be redeemed on such date in accordance with this Twenty-fourth
Supplemental Indenture by reason of such redemption or acceleration, and (iv)
the Corresponding Redemption Amount or the Acceleration Redemption Amount
payable on such date with respect to Bonds of the Twenty-sixth Series
(determined in accordance with this Twenty-fourth Supplemental Indenture) and
setting forth the amounts of the respective portions thereof representing
principal of, premium (if any) and interest on the Bonds of the Twenty-sixth Series. Each Redemption Demand shall be deemed to
constitute a waiver by the Senior Note Trustee, as registered owner of all
Bonds of the Twenty-sixth Series then Outstanding, of notice of redemption and
call for redemption by the Company or the Corporate Trustee of the Bonds of the
Twenty-sixth Series subject to redemption as described in such Redemption
Demand. The Corporate Trustee may
conclusively presume the statements contained in each Redemption Demand to be
correct (and the Corporate Trustee shall be fully protected in relying
thereon).
The Corporate Trustee may conclusively presume that no
rescission or annulment of an Acceleration Redemption (in respect of which the
Corporate Trustee has received a Redemption Demand) is required unless and
until it shall have received a written notice from the Senior Note Trustee,
signed by a person purporting to be its duly authorized officer, stating that
the acceleration of the Senior Notes has been rescinded or annulled in
accordance with the Senior Note Indenture (a “
Rescission Notice
”). Each Rescission Notice also shall state the
date on which the acceleration of the Senior Notes was rescinded or annulled in
accordance with the Senior Note Indenture and, as consequence, the redemption
of the Bonds of the Twenty-sixth Series was rescinded or annulled in accordance
with this Twenty-fourth Supplemental Indenture.
The Corporate Trustee may conclusively presume the statements contained
in any Rescission Notice to be correct (and the Corporate Trustee shall be
fully protected in relying thereon).
(II) It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything herein or in any Bond of the Twenty-sixth Series to the contrary
(other than the provisions of subdivision (IV) below), each payment of
principal of, premium (if any) or interest on the Bonds of the Twenty-sixth
Series that becomes due and payable on any day in accordance with this
Twenty-fourth Supplemental Indenture (whether by reason of stated due date,
acceleration, redemption or otherwise) shall correspond to, and be equal to the
Senior Notes Applicable Share of, a payment of principal of, premium (if any)
or interest on the Senior Notes that becomes due and payable on such day in
accordance with the Senior Note Indenture.
(III) The
obligation of the Company to make each payment of principal of, premium (if
any) or interest on the Bonds of the Twenty-sixth Series that becomes due and
payable in accordance with this Twenty-fourth Supplemental Indenture
(A) shall be fully satisfied and discharged if the corresponding payment
of the principal of, premium (if any) or interest on the Senior Notes shall
have been fully paid, or if provision for the full payment of the Senior Notes
shall have been made (by depositing moneys sufficient for such full payment
with the Senior Note Trustee), in either case under and in accordance with the
Senior Note Indenture, and (B) shall be partially satisfied and discharged
if the corresponding payment of the principal of, premium (if any) or interest
on the Senior Notes shall have been
28
partially paid, or if
provision for the partial payment of the Senior Notes shall have been made (by
depositing moneys sufficient for such partial payment with the Senior Note
Trustee), in either case under and in accordance with the Senior Note Indenture
(such partial satisfaction and discharge with respect to the Bonds of the
Twenty-sixth Series to be in an amount equal to the Senior Notes Applicable
Share of the amount of such partial payment or provision for partial payment
with respect to the Senior Notes). The
Corporate Trustee may conclusively presume that the obligation of the Company
to make payments with respect to the principal of, premium (if any) and
interest on the Bonds of the Twenty-sixth Series has been fully satisfied and
discharged unless and until the Corporate Trustee shall have received a written
notice from the Senior Note Trustee, 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 of, premium (if
any) and/or interest on the Senior Notes which became due and payable in
accordance with the Senior Note Indenture, (ii) the amount and date of
such payment of principal of, premium (if any) and/or interest on the Senior
Notes which the Company has failed to make in accordance with the Senior Note
Indenture, and (iii) the amount of principal of, premium (if any) and/or
interest on the Bonds of the Twenty-sixth Series which, in accordance with this
Twenty-fourth Supplemental Indenture, has not been satisfied and discharged by
reason of such failure of the Company.
The Corporate Trustee may conclusively presume the statements contained
in any such notice from the Senior Note Trustee to be correct unless and until
the Corporate Trustee shall receive a subsequent and/or modified notice from
the Senior Note Trustee pursuant to and in accordance with this
subdivision (III) (and the Corporate Trustee shall be fully protected in
relying thereon). Without limitation of
the foregoing, and for the avoidance of any doubt, it is expressly stated that
the Corporate Trustee shall not be responsible for (i) the calculation of
interest on the Bonds of the Twenty-sixth Series, or (ii) the
determination of any amount (including, without limitation, any principal of,
premium (if any) or interest on the Senior Notes) that is payable or paid under
the Senior Note Indenture.
(IV) Nothing
herein or in any of the Bonds of the Twenty-sixth Series (including, without
limitation, any reference to the principal payable with respect to the Bonds of
the Twenty-sixth Series being determined on the basis of the Applicable Share
of the principal payable with respect to the Senior Notes) shall, or shall be
deemed or construed to, (A) increase the aggregate principal amount of the
Bonds of the Twenty-sixth Series that are Outstanding from time to time,
(B) cause or permit an amount of principal of the Bonds of the Twenty-sixth
Series to be or to become due and payable which, when added to all other
principal of such Bonds theretofore paid, exceeds $161,000,000, or
(C) cause or permit to be or to become due and payable interest on the
Bonds of the Twenty-sixth Series which is payable on any principal of the Bonds
of the Twenty-sixth Series that is in excess of the principal of the Bonds of
the Twenty-sixth Series as restricted pursuant to the preceding
clauses (A) and (B).
29
ARTICLE IV
Reservation of Right to
Make Amendments
SECTION 4.1 The Company reserves the right, without any
consent or other action by holders of Bonds of the Twenty-fourth Series, Bonds
of the Twenty-fifth Series or Bonds of the Twenty-sixth Series, or bonds of any
subsequent series, to make such amendments to the Mortgage (as supplemented) as
shall be necessary in order to cause there to be excluded from the Mortgaged
and Pledged Property and the Lien of the Mortgage (as supplemented) at all
times, including, without limitation, in the event and following the date that
either or both of the Trustees or a receiver of trustee shall enter upon and
take possession of the Mortgaged and Pledged Property in the manner provided in
Article XIII of the Mortgage (as supplemented) by reason of the occurrence
of a Default as defined in Section 65 thereof, all of the Company’s right,
title and interest, whenever arising or acquired, in, to and under all accounts
(as defined in the Uniform Commercial Code as in effect from time to time in
the State of New York), all accounts receivable, all payments for goods sold or
leased or for services rendered (whether or not they have been earned by
performance), all rights in any merchandise or goods which any of the foregoing
may represent, all rights, title, security and guaranties with respect to any
or all of the foregoing, and all proceeds (as defined in the Uniform Commercial
Code as in effect from time to time in the State of New York) of, and all
collections from or with respect to, any or all of the foregoing.
SECTION 4.2 The Company reserves the right, without any
consent or other action by holders of Bonds of the Twenty-fourth Series, Bonds
of the Twenty-fifth Series or Bonds of the Twenty-sixth Series, or holders of
bonds of any subsequent series, to make the following amendments to
Section 120 of the Mortgage (as supplemented): (i) to substitute for the words “adversely
affecting any bonds then Outstanding hereunder”, which appear at the end of the
last sentence of such Section, the words “which adversely affects the interests
of the Holders of any of the bonds then Outstanding in any material respect”;
and (ii) to add at the end of the first sentence of such Section the
following:
; or the Company may correct or supplement any
provision herein or in any supplemental indenture which may be defective or
inconsistent with any other provision herein or in any supplemental indenture;
or the Company may make other changes to the provisions hereof or of any
supplemental indenture or add new provisions hereto or to any supplemental
indenture or eliminate provisions herefrom or from any supplemental indenture,
provided that the same does not adversely affect the interests of the Holders
of any of the bonds then Outstanding in any material respect.
30
ARTICLE V
Amendments to Mortgage
SECTION 5.1. So long as any of the Bonds of the
Twenty-fourth, Twenty-fifth or Twenty-sixth Series remain Outstanding, Section
7 of the Mortgage is amended by adding at the end thereof the following
additional paragraphs:
If any bonds Outstanding at the date of a Net Earning
Certificate (except any for the refunding of which the bonds applied for are to
be issued) or any bonds then applied for in pending applications (including the
application in connection with which such Net Earning Certificate is made) bear
or are to bear interest at a variable rate or variable rates such that the
interest requirements with respect to such bonds for any twelve (12) month
period prior to the stated maturity date of such bonds are not determinable at
the date of such Net Earning Certificate (any such bonds being referred to as “
Variable
Rate Bonds
”), then (in lieu of setting forth the Annual Interest
Requirements (as otherwise prescribed by this Section 7), such Net Earning
Certificate shall (A) set forth (i) the sum of the amounts required
by clauses (i) through (iv) of paragraph (B) of this
Section 7 (in the case of such clauses (i) and (ii), excluding the
interest requirements in respect of the Variable Rate Bonds) (the sum of such
amounts being referred to herein and to be referred to in such Net Earning
Certificate as the “
Fixed Rate Interest Amount
”), and (ii) the
amount (referred to herein and to be referred to in such Net Earning
Certificate as the “
Maximum Permitted Variable Rate Interest Amount
”) by
which (x) one-half of the Adjusted Net Earnings of the Company set forth
in such Net Earning Certificate, exceeds (y) the Fixed Rate Interest
Amount set forth in such Net Earning Certificate, and (ii) if such Net
Earning Certificate is accompanied by a certificate of an independent (as
hereinafter defined) investment banking firm, signed by a managing director or
officer thereof, to the effect that, based upon historical fluctuations in the
indices upon which the variable rate or variable rates borne by the Variable
Rate Bonds are based, and taking into account the margins to be added to or
subtracted from such indices and/or any other adjustments to be made in determining
such variable rate or variable rates and prevailing and projected conditions in
the markets influencing such indices, such independent (as hereinafter defined)
investment banking firm believes (or is of the view), as of the date of such
certificate, that the aggregate amount of interest to be payable on all of the
Variable Rate Bonds during any period of twelve (12) months prior to the stated
maturity date last to occur of any of the Variable Rate Bonds will not exceed
the Maximum Permitted Variable Rate Interest Amount (as calculated by the
Company in such Net Earning Certificate without any responsibility on the part
of such independent (as hereinafter defined) investment banking firm for the
calculation thereof), such Net Earning Certificate shall be deemed for all
purposes of the Mortgage (including,
31
without limitation, Sections 26, 28 and 29 of the
Mortgage) to show Adjusted Net Earnings of the Company to be as required by
Section 27 of the Mortgage. As used in
this Section 7, “independent” means, with respect to an investment banking firm
that provides a certificate pursuant to this Section 7,
that: (i) such investment banking firm is competent to provide
such certificate (and such investment banking firm shall be conclusively
presumed to be competent to provide such certificate if such investment banking
firm is an investment banking firm of nationally recognized standing and
engages in interest rate swap transactions in the ordinary course of its
business); (ii) such investment banking firm does not have any direct or
indirect investment in the Company or in any bonds that, as of the date of such
certificate, are Outstanding or the subject of a pending application for
authentication and delivery under the Mortgage (including, without limitation,
any bonds that are subject of the Net Earning Certificate to which such
certificate relates) or in any affiliate of the Company (other than de minimus
amounts of loans or securities of the Company or affiliates of the Company held
in its or its affiliates’ accounts and any investment in, or ownership of,
additional securities or loans of the Company or affiliates of the Company
resulting from its market making activities in the ordinary course of its
business); (iii) such investment banking firm is not, and none of its
officers or directors is, an affiliate of the Company; and (iv) such
investment banking firm is not acting as an underwriter with respect to any
bonds that are the subject of the Net Earning Certificate to which such
certificate relates or as an arranger or provider of the loans, extensions of
credit or other securities (if any) for which such bonds are collateral
security.
If the Company is a successor corporation (within the
meaning of Section 86 of this Indenture), the “Adjusted Net Earnings of the
Company” as set forth in each Net Earning Certificate shall be calculated as
described in the last two sentences of Section 86 of this Indenture.
SECTION 5.2 So long as any of the Bonds of the Twenty-fourth,
Twenty-fifth and Twenty-sixth Series remain Outstanding, Section 27 of the
Mortgage is amended by adding at the end thereof the following additional
sentence:
As described in the penultimate paragraph of Section 7
hereof, and subject to the conditions therein specified, a Net Earning
Certificate shall be deemed to show Adjusted Net Earnings of the Company to be
as required by this Section 27 (without any necessity for such Net Earning
Certificate to specify Annual Interest Requirements).
32
SECTION 5.3 So long as any of the Bonds of the
Twenty-fourth, Twenty-fifth and Twenty-sixth Series are Outstanding, Section 86
of the Mortgage is amended by adding at the end thereof the following additional
sentences:
For the avoidance of any doubt, it is expressly stated
that in the event that a successor corporation (having succeeded to and having
been substituted for the Company in accordance with this Section 86) shall
exercise any right under this Indenture (whether as to the issuance of
additional bonds (including, without limitation, the Bonds of the
Twenty-fourth, Twenty-fifth and Twenty-sixth Series), the withdrawal of cash,
the release of property, the taking of credit under Section 39 or Section 40
hereof, or otherwise) and a Net Earning Certificate shall be required by the
terms of this Indenture in connection therewith, the “Adjusted Net Earnings of
the Company” shall be, and shall be stated in such Net Earning Certificate to
be, the lesser of (A) the amount (for the applicable period selected in
accordance with paragraph (A) of Section 7 of this Indenture)
determined in accordance with paragraph (A) of Section 7 of this
Indenture (and the other provisions of such Section 7 that are relevant to such
paragraph) on the basis of (i) the items set forth in clauses (1),
(2), (4) and (6) of paragraph (A) of such Section 7 being such
portions of such items of such successor corporation as are reasonably
allocated by such successor corporation to or from the Mortgaged and Pledged
Property as a plant or plants and an operating system or operating systems (and
if, on the date of a Net Earning Certificate, such successor corporation shall
be a party to any other general or first mortgage indenture and deed of trust
relating to property other than the Mortgaged and Pledged Property and the lien
of such other mortgage indenture and deed of trust shall not have been
discharged, such reasonable allocation shall be in a manner consistent with the
manner of allocation utilized and/or to be utilized by such successor
corporation in making calculations of the “Adjusted Net Earnings of the Company”
(or other comparable term) under and as defined in such other mortgage
indenture and deed of trust), (ii) the item set forth in clause (8)
of paragraph (A) of such Section 7 being calculated without regard to
income (net) derived from any electric and/or gas utility business of the
successor corporation in which the Mortgaged and Pledged Property is not utilized
(but otherwise in accordance with such Section 7), and (iii) the item set
forth in clause (10) of paragraph (A) of such Section 7 being
calculated without regard to sub-clause (b) of such clause and
without regard to the proviso to such clause (but otherwise in accordance with
such clause), and (B) the amount (for the applicable period selected in
accordance with paragraph (A) of Section 7 of this Indenture)
determined in accordance with paragraph (A) of Section 7 of this Indenture
(and the other provisions of such Section 7 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 such Section 7,
other than allocation or distinction between (i) the electric and/or gas utility
business or businesses in which such successor corporation is engaged
33
(whether or not the Mortgaged and Pledged Property is
utilized in connection therewith), and (ii) the other business or businesses
in which such successor corporation is engaged (with such other business or
businesses being given effect under the items set forth in clauses (8) and
(10) of paragraph (A) of such Section 7)). Each such Net Earning Certificate shall
contain a statement of the signers of such Net Earning 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 Earning Certificate are
in accordance with the requirements of the preceding sentence of this Section
86.
ARTICLE VI
Miscellaneous
SECTION 6.1 Except as otherwise expressly provided
herein, the terms defined in the Mortgage, as heretofore supplemented, shall,
for all purposes of this Twenty-fourth Supplemental Indenture, have the meaning
specified in the Mortgage, as heretofore supplemented.
SECTION 6.2 The Trustees hereby accept the trust herein
declared, provided, created or supplemented and agree to perform the same upon
the terms and conditions herein and in the Mortgage, as heretofore
supplemented, set forth and upon the following terms and conditions.
The Trustees shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Twenty-fourth Supplemental Indenture 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 XVII of the Mortgage, as heretofore supplemented, shall
apply to and form part of this Twenty-fourth Supplemental Indenture with the
same force and effect as if the same were herein set forth in full with such
omissions, variations and insertions, if any, as may be appropriate to make the
same conform to the provisions of this Twenty-fourth Supplemental Indenture.
SECTION 6.3 Whenever in this Twenty-fourth Supplemental
Indenture any of the parties hereto is named or referred to, this shall,
subject to the provisions of Articles XVI and XVII of the Mortgage, as
heretofore supplemented, be deemed to include the successors and assigns of
such party, and all the covenants and agreements in this Twenty-fourth
Supplemental Indenture contained by or on behalf of the Company, or by or on
behalf of the Trustees shall, subject as aforesaid, bind and inure to the
respective benefits of the respective successors and assigns of such parties,
whether so expressed or not.
SECTION 6.4 Nothing in this Twenty-fourth Supplemental
Indenture, expressed or implied, is intended, or shall be construed, to confer
upon, or to give to, any person, firm or corporation, other than the parties
hereto and the holders of the bonds and coupons
34
Outstanding under the
Indenture, any right, remedy or claim under or by reason of this Twenty-fourth
Supplemental Indenture or any covenant, condition, stipulation, promise or
agreement hereof, and all the covenants, conditions, stipulations, promises and
agreements in this Twenty-fourth Supplemental Indenture contained by or on
behalf of the Company shall be for the sole and exclusive benefit of the
parties hereto, and of the holders of the bonds and coupons now, or to be,
Outstanding under the Indenture.
SECTION 6.5 This Twenty-fourth Supplemental Indenture
shall be executed in several counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument.
[Signature
Pages Follow]
35
IN WITNESS WHEREOF, NORTHWESTERN CORPORATION has
caused its name to be hereunto affixed, and this instrument to be signed and
sealed by one of its Vice Presidents, and its seal to be attested by its
Corporate Secretary or one of its Corporate Assistant Secretaries for and in
its behalf, and THE BANK OF NEW YORK, in token of its acceptance of the trust
hereby created, has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by one of its Vice Presidents or one of its
Assistant Vice Presidents, and its corporate seal to be attested by one of its
Assistant Vice Presidents, Assistant Secretaries or Assistant Treasurers, and
MARYBETH LEWICKI, for all like purposes, has hereunto set her hand and affixed
her seal, as of the day and year first above written.
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NORTHWESTERN
CORPORATION
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By:
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/s/ Brian B. Bird
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Name:
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Brian B. Bird
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Title:
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Vice President and
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Chief Financial Officer
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[SEAL]
Attest:
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/s/ Alan D. Dietrich
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Name:
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Alan D. Dietrich
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Title:
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Corporate Secretary
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Executed, sealed and
delivered by
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NORTHWESTERN
CORPORATION
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in the presence of:
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/s/ Michael J. Young
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/s/ Michael Devoe
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THE
BANK OF NEW YORK,
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as Corporate Trustee
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By:
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/s/ Jeremy F.
Finkelstein
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Name:
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Jeremy F. Finkelstein
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Title:
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Assistant Treasurer
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[SEAL]
Attest:
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/s/ Joseph
A. Lloret
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Name: Joseph A. Lloret
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Title: Assistant Treasurer
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/s/ MaryBeth
Lewicki
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MARYBETH
LEWICKI, as Co-Trustee
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Executed, sealed and
delivered
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by THE BANK OF NEW YORK
and
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MARYBETH LEWICKI in the
presence of:
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/s/ Helen L. Li
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/s/
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STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK)
This
instrument was acknowledged before me on this 1st day of November, 2004, by
Brian B. Bird, Vice President and Chief Financial Officer, of NORTHWESTERN
CORPORATION, a Delaware corporation.
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/s/ Keith M.
Wixson
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Notary
Public, State of New York
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No. 01WI5081858
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Qualified
in New York County
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Commission
Expires: July 14, 2007
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[SEAL]
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK)
This
instrument was acknowledged before me on this 1st day of November, 2004, by
Jeremy F. Finkelstein, Assistant Treasurer of THE BANK OF NEW YORK, a New York
corporation.
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/s/ Robert
Hirsch
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Notary
Public, State of New York
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No. 01HI6076679
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Qualified
in Rockland County
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Commission
Expires: July 1, 2006
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[SEAL]
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK)
This
instrument was acknowledged before me on this 1st day of November, 2004, by
MARYBETH LEWICKI.
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/s/ Robert
Hirsch
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Notary
Public, State of New York
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No. 01HI6076679
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Qualified
in Rockland County
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Commission
Expires: July 1, 2006
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[SEAL]
Exhibit A to
Twenty-fourth Supplemental Indenture
Form of Bond of the Twenty-fourth Series
Exhibit A
[FORM OF FIRST MORTGAGE BOND, COLLATERAL (2004) SERIES
A, DUE 2009]
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR
COLLATERAL AGENT UNDER THE COLLATERAL AGREEMENT (AS IDENTIFIED AND DEFINED
BELOW).
NORTHWESTERN CORPORATION
First Mortgage Bond,
Collateral (2004) Series A, due 2009
NORTHWESTERN CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (the “
Company
”), for
value received, hereby promises to pay to LEHMAN COMMERCIAL PAPER INC., AS
COLLATERAL AGENT UNDER THE BOND COLLATERAL AGREEMENT to which reference is
hereinafter made, or (subject to the transfer restrictions hereinbefore and
hereinafter described) registered assigns, at the office or agency of the
Company in the Borough of Manhattan, The City of New York, the sum of
dollars, or, if less, the unpaid principal amount of the Revolving Loans (as
hereinafter defined), on November 1, 2009 (the “
Revolving Credit Maturity
Date
”), and 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, and to pay to
the registered owner interest thereon as hereinafter described in like coin or
currency and at such office or agency.
The bonds of the series of which this bond is one have
been issued to Lehman Commercial Paper Inc., as collateral agent (together with
its successors in such capacity, the “
Collateral Agent
”) under the Bond
Delivery and Collateral Agreement, dated as of November 1, 2004 (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 Revolving Credit Applicable Share (as hereinafter
defined) of the Revolving Credit Obligations (as hereinafter defined) under the
Credit Agreement, dated as of November 1, 2004 (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,
the several lenders from time to time parties thereto (the “
Lenders
”),
Lehman Brothers Inc. and Deutsche Bank Securities Inc., as joint lead arrangers
and joint bookrunners, Deutsche Bank Securities Inc., as syndication agent,
Union Bank of California, N.A. and KeyBank National Association, as
co-documentation agents, Lehman Commercial Paper Inc., as administrative agent
(in such capacity, the “
Administrative Agent
”) and the Collateral Agent.
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 set fully forth at this place.
A-1
This instrument shall not become obligatory until The
Bank of New York (successor to Morgan Guaranty Trust Company of New York), the
Corporate Trustee under the Mortgage (referred to on the reverse hereof), or
its successors thereunder, shall have signed the form of authentication
certificate endorsed hereon.
IN WITNESS WHEREOF, NORTHWESTERN CORPORATION has
caused this instrument to be signed in its corporate name by its Chairman of
the Board or its President or one of its Vice Presidents by his or her
signature or a facsimile thereof, and its corporate seal to be impressed or
imprinted hereon and attested by its Corporate Secretary or one of its Corporate
Assistant Secretaries by his or her signature or a facsimile thereof.
Dated:
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NORTHWESTERN
CORPORATION
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By:
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[Title]
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Attest:
(Seal)
CORPORATE TRUSTEE’S
AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned Mortgage.
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THE BANK OF NEW
YORK,
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as Corporate Trustee
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By:
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Authorized
Signatory
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A-2
[FORM OF REVERSE OF BOND]
General
This bond is one of an issue of bonds of the Company
issuable in series and is one of a series known as its First Mortgage Bonds,
Collateral (2004) Series A, due 2009 (sometimes herein referred to as the “
Bonds
of the Twenty-fourth Series
”), all bonds of all series issued and to be
issued under and equally secured (except in so far as any sinking or other
fund, established in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any particular series)
by a Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, including the Twenty-fourth Supplemental Indenture dated
as of November 1, 2004 (the “
Twenty-fourth Supplemental Indenture
”),
called the “
Mortgage
”), dated as of October 1, 1945, executed by The
Montana Power Company (NorthWestern Corporation, successor thereunder) to
Guaranty Trust Company of New York (The Bank of New York, successor thereunder)
and Arthur E. Burke (MaryBeth Lewicki, successor thereunder), as Trustees. Reference is made to the Mortgage for a
description of the property mortgaged and pledged, the nature and extent of the
security, the rights of the holders of the bonds and of the Trustees in respect
thereof, the duties and immunities of the Trustees, the terms and conditions
upon which the bonds are and are to be secured, the circumstances under which
additional bonds may be issued and the definition of any capitalized term used
herein but not defined herein. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights and obligations
of the Company and/or the rights of the holders of the bonds and/or coupons
and/or the terms and provisions of the Mortgage may be modified or altered by
affirmative vote of the holders of at least 66-2/3% in principal amount of the
bonds then Outstanding under the Mortgage and, if the rights of the holders of
one or more, but less than all, series of bonds then Outstanding are to be
affected, then also by affirmative vote of the holders of at least 66-2/3% in
principal amount of the bonds then Outstanding of each series of bonds so to be
affected (excluding in any case bonds disqualified from voting by reason of the
Company’s interest therein as provided in the Mortgage);
provided
that, without the consent of the
holder hereof, no such modification or alteration shall, among other things,
impair or affect the right of the holder to receive payment of the principal of
and interest on this bond, on or after the respective due dates expressed
herein, or permit the creation of any lien equal or prior to the lien of the
Mortgage or deprive the holder of the benefit of a lien on the mortgaged and
pledged property.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions, in the manner
and at the time set forth in the Mortgage, upon the occurrence of a default as
in the Mortgage provided.
No recourse shall be had for the payment of the
principal of or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder, officer or
director of the Company or of any predecessor or successor
A-3
corporation, as such, either
directly or through the Company or any predecessor or successor corporation,
under any rule of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators, subscribers,
stockholders, officers and directors being released by the holder or owner
hereof by the acceptance of this bond and being likewise waived and released by
the terms of the Mortgage.
Transfer Provisions and
Restrictions
Bonds of the Twenty-fourth Series shall not be
transferable except to any successor Collateral Agent under the Collateral
Agreement. As a condition precedent to
any transfer of the Bonds of the Twenty-fourth Series by the Collateral Agent,
the Collateral Agent shall submit to the Company, the Corporate Trustee and, if
applicable, any bond registrar or transfer agent for the Bonds of the
Twenty-fourth Series (in addition to all other documents and instruments
required to be submitted pursuant to the Mortgage) a 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 (and the Corporate Trustee may
conclusively presume the statements in any such certificate of the Collateral
Agent to be correct and shall be fully protected in relying thereon).
Any such transfer is to be made as prescribed in the
Mortgage by the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough of Manhattan,
The City of New York, upon surrender and cancellation of the applicable Bond of
the Twenty-fourth Series, and, thereupon, a new fully registered temporary or
definitive bond of the same series for a like principal amount will be issued
to the transferee in exchange therefor as provided in the Mortgage. The Company and the Trustees may deem and
treat the person in whose name any Bond of the Twenty-fourth Series is
registered as the absolute owner thereof for the purpose of receiving payment
and for all other purposes and neither the Company nor the Trustees shall be
affected by any notice to the contrary.
In the manner prescribed in the Mortgage, Bonds of the
Twenty-fourth Series upon surrender thereof, for cancellation, at the office or
agency of the Company in the Borough of Manhattan, The City of New York, are
exchangeable for a like aggregate principal amount of registered bonds of the
same series of other authorized denominations.
As provided in the Mortgage, the Company shall not be
required to make transfers or exchanges of bonds of any series for a period of
ten days next preceding any interest payment date for bonds of said series, or
next preceding any designation of bonds of said series to be redeemed;
provided, however,
that pursuant to a
waiver by the Company in the Twenty-fourth Supplemental Indenture, these
restrictions shall not be applicable to any transfer of the Bonds of the
Twenty-fourth Series to a successor Collateral Agent under the Collateral
Agreement.
A-4
Principal
The unpaid principal of the Bonds of the Twenty-fourth
Series, of which this bond is one, is scheduled to be paid on the Revolving
Credit Maturity Date. From time to time
after the issuance of the Bonds of the Twenty-fourth Series, and as Revolving
Loans (as hereinafter defined) are prepaid and reborrowed subject to and in
accordance with the Credit Agreement, (i) for purposes of determining the
amount of principal payable by the Company with respect to the Bonds of the
Twenty-fourth Series, the unpaid principal amount of the Bonds of the
Twenty-fourth Series at any time shall be deemed to be equal to the Revolving
Credit Applicable Share of the unpaid principal amount of the Revolving Loans
at such time, plus, if an acceleration of the Revolving Loans shall be in
effect in accordance with the Credit Agreement at such time, the amount of cash
collateral required to be provided by the Company pursuant to Section 8 of
the Credit Agreement in respect of Letters of Credit, and (ii) for all
other purposes of the Indenture (including, without limitation, the
determination of the amount of principal on which interest is payable and the
determination of the principal amount with respect to which the Collateral
Agent, as registered owner, is entitled to vote or otherwise exercise rights as
registered owner), the Bonds of the Twenty-fourth Series shall be deemed to be “Outstanding”
at any time in an aggregate principal amount equal to the Maximum Principal
Amount at such time. The Maximum
Principal Amount on and as of the date of original issuance of the Bonds of the
Twenty-fourth Series shall be $90,000,000 and thereafter shall be reduced from
time to time upon each Revolving Credit Commitment Redemption and each
Revolving Credit Event of Default Commitment Termination Redemption (as
hereinafter defined), in each case, by an amount equal to the aggregate
principal amount of the Bonds of the Twenty-fourth Series that are deemed to
have been redeemed pursuant to such Revolving Credit Commitment Redemption or
such Revolving Credit Event of Default Commitment Termination Redemption.
Interest
The unpaid principal amount of the Bonds of the
Twenty-fourth Series, of which this bond is one, bears interest (i) with
respect to the portion or amount of such principal that is equal to the
principal amount of Revolving Loans, 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 Revolving 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 Revolving Credit Loans), payable on each day on
which interest is payable on Revolving Loans in accordance with the Credit
Agreement (and in an amount equal to the Revolving Credit Applicable Share of
the amount of interest that is payable on Revolving Loans on such day in
accordance with the Credit Agreement), (ii) with respect to the portion or amount
of such principal (in excess of the amount described in the preceding clause
(i)) that is equal to the Revolving Credit Applicable Share of the unused Total
Revolving Credit Commitments (as defined in the Credit Agreement), at one or
more variable interest rate per annum which rate or rates for any day shall be
equal to the rate or rates per annum at which commitment fees are payable under
the Credit Agreement on the unused Total Revolving Credit Commitments, payable
on
A-5
each day on which
commitment fees are payable under the Credit Agreement (and in an amount equal
to the Revolving Credit Applicable Share of the amount of commitment fees that
is payable under the Credit Agreement on such day), and (iii) with respect to
the portion or amount of such principal (in excess of the amounts described in
the preceding clauses (i) and (ii)) that is equal to the Revolving Credit
Applicable Share of the amount available to be drawn under Letters of Credit
(as defined in the Credit Agreement), 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 at which letter of credit fees are payable under the Credit Agreement
on the amount available to be drawn under Letters of Credit, payable on each
day on which letter of credit fees are payable under the Credit Agreement (and
in an amount equal to the Revolving Credit Applicable Share of the amount of
letter of credit fees that is payable under the Credit Agreement on such day),
in each case, to the Collateral Agent, as the registered owner, without regard
to, or necessity for, any record date.
Revolving Credit
Applicable Share
As used herein, “
Revolving Credit Applicable Share
”
means, as of any day, a fraction (expressed as a percentage rounded to the
second place), (i) the numerator of which is the aggregate principal
amount of the Bonds of the Twenty-fourth Series that are Outstanding on such
day, and (ii) the denominator of which is the sum of (a) the
aggregate principal amount of the Bonds of the Twenty-fourth Series that are
Outstanding on such day, plus (b) the aggregate principal amount of the
First Mortgage Bonds, Collateral (2004) Series A, due 2009, of the Company
(the “
South Dakota Revolving Credit Bonds
”) that are outstanding on such
day under the Company’s South Dakota Mortgage (as defined in the Twenty-fourth
Supplemental Indenture). Simultaneously
with the issuance and registration of the Bonds of the Twenty-fourth Series in
the name of the Collateral Agent (for the same purpose), the South Dakota
Revolving Credit Bonds were issued to the Collateral Agent to secure the
Revolving Credit Obligations under the Credit Agreement.
Revolving Credit
Obligations and Revolving Loans
As used herein, “
Revolving Credit Obligations
”
means the obligations of the Company (A) to pay (i) principal of and
interest on (a) the Revolving Credit Loans (as defined in the Credit
Agreement), (b) the Swing Line Loans (as defined in the Credit Agreement), and
(c) drawings under Letters of Credit (as defined in the Credit Agreement) that
are not reimbursed pursuant to and in accordance with the Credit Agreement
(collectively, “
Revolving Loans
”), (ii) commitment fees on the average
daily amount of the unused Total Revolving Credit Commitments (as defined in
the Credit Agreement); and (iii) letter of credit fees on the amount available
to be drawn under Letters of Credit (as defined in the Credit Agreement) and
(B) to cash collateralize Letters of Credit pursuant to and in accordance
with Section 8 of the Credit Agreement.
A-6
Redemption
Bonds of the Twenty-fourth Series, of which this bond
is one, shall be 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 there is a permanent reduction or termination of the Revolving Credit
Commitments (as defined in the Credit Agreement) pursuant to Section 2.10 of
the Credit Agreement, Bonds of the Twenty-fourth Series shall be deemed to have
been redeemed in an aggregate principal amount equal to the Revolving Credit
Applicable Share of the amount of such permanent reduction or termination of
the Revolving Credit Commitments pursuant to such Section 2.10 (a “
Revolving
Credit Commitment Redemption
”); (B) on each day on which the Revolving
Credit Commitments are permanently terminated pursuant to Section 8 of the
Credit Agreement, Bonds of the Twenty-fourth Series shall be deemed to have
been redeemed in an aggregate principal amount which, after giving effect to
such termination, results in the Maximum Principal Amount of the Bonds of Twenty-fourth
Series being equal to the Revolving Credit Applicable Share of the sum of the
principal amount of the Revolving Loans then outstanding under the Credit
Agreement and the amount then available to be drawn under Letters of Credit (a “
Revolving
Credit Event of Default Commitment Termination Redemption
”); and (C) on
each day on which the Revolving Loans are accelerated in accordance with the
Credit Agreement (an “
Acceleration Redemption Date
”), the entire
aggregate principal amount of the Bonds of the Twenty-fourth Series shall be
subject to mandatory redemption by the Company (an “
Acceleration Redemption
”);
in each case, without any necessity for notice or call by the Company or by the
Corporate Trustee (such notice and call being waived by the registered owners
of the Bonds of the Twenty-fourth Series by the acceptance of the Bonds of the
Twenty-fourth Series and in connection with each Redemption Demand hereinafter
described);
provided
,
however
, that in the event of a
reinstatement of the Revolving Credit Commitments or a rescission or annulment
of the acceleration of the Revolving Loans pursuant to the Credit Agreement or
otherwise, the related Revolving Credit Event of Default Commitment Termination
Redemption or the related Acceleration Redemption shall be deemed to be
rescinded or annulled, without prejudice to the occurrence of another Revolving
Credit Event of Default Commitment Termination Redemption or another
Acceleration Redemption upon and by reason of a subsequent termination of the
Revolving Credit Commitments pursuant to Section 8 of the Credit Agreement or
another acceleration of the Revolving Loans in accordance with the Credit
Agreement. Acceleration Redemption of
the Bonds of the Twenty-fourth Series on an Acceleration Redemption Date shall
be at a redemption price equal to the principal amount (determined in
accordance with the Twenty-fourth Supplemental Indenture) of the Bonds of the
Twenty-fourth Series that is then payable by the Company (without premium),
together with interest accrued on said principal to and including such
Acceleration Redemption Date (collectively, an “
Acceleration Redemption
Amount
”); and such Acceleration Redemption Amount shall be due and payable
on such Acceleration Redemption Date. In
the event of any failure by the Company to pay when due an Acceleration
Redemption Amount, interest shall accrue on such unpaid Acceleration Redemption
Amount at the rates (and in amounts
A-7
equal to the Revolving
Credit Applicable Share of the amounts) of interest that accrue on the
corresponding unpaid principal of and interest on the Revolving Loans in
accordance with the Credit Agreement.
The Corporate Trustee may conclusively presume that no
redemption of Bonds of the Twenty-fourth Series is deemed to have occurred or
resulted in a reduction of the Maximum Principal Amount (in the case of a
Revolving Credit Commitment Redemption or a Revolving Credit Event of Default
Commitment Termination Redemption) or is required to occur (in the case of an
Acceleration Redemption) 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 Revolving Credit Commitments have been
permanently reduced or terminated pursuant to Section 2.10 of the Credit
Agreement or the Revolving Credit Commitments have been permanently terminated
pursuant to Section 8 of the Credit Agreement or the Revolving Loans have been
accelerated in accordance with the Credit Agreement (a “
Redemption Demand
”). Each Redemption Demand also shall (i) state
the date on which the Revolving Credit Commitments were permanently reduced or
terminated pursuant to Section 2.10 of the Credit Agreement or the Revolving Credit
Commitments were permanently terminated pursuant to Section 8 of the Credit
Agreement or the Revolving Loans were accelerated, (ii) the amount by which the
Revolving Credit Commitments were so permanently reduced or terminated and the
Maximum Principal Amount (determined in accordance with the Twenty-fourth
Supplemental Indenture) after giving effect to the related and deemed
redemption of Bonds of the Twenty-fourth Series or the principal amount of the
Revolving Loans subject to acceleration on such date, (iii) the principal
amount of Bonds of the Twenty-fourth Series that are deemed to have been
redeemed or are to be redeemed on such date in accordance with the
Twenty-fourth Supplemental Indenture by reason of such permanent reduction or
termination of the Revolving Credit Commitments and such reduction of the
Maximum Principal Amount or such acceleration of the Revolving Loans, and (iv)
in the case of an Acceleration Redemption, the Acceleration Redemption Amount
payable with respect to the Bonds of the Twenty-fourth Series (determined in
accordance with the Twenty-fourth Supplemental Indenture) and setting forth the
amounts of the respective portions thereof representing principal of and
interest on the Bonds of the Twenty-fourth Series. Each Redemption Demand shall be deemed to
constitute a written waiver by the Collateral Agent, as registered owner of all
Bonds of the Twenty-fourth Series then Outstanding, of notice of redemption and
call for redemption by the Company or the Corporate Trustee of the Bonds of the
Twenty-fourth Series subject to redemption as described in such Redemption
Demand. The Corporate Trustee may
conclusively presume the statements contained in each Redemption Demand to be
correct (and the Corporate Trustee shall be fully protected in relying
thereon).
The Corporate Trustee may conclusively presume that no
rescission or annulment of a Revolving Credit Event of Default Commitment
Termination Redemption or an Acceleration Redemption (in respect of which the
Corporate Trustee has received a Redemption Demand) 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,
A-8
stating that the
termination of the Revolving Credit Commitments pursuant to Section 8 of the
Credit Agreement or the acceleration of the Revolving Loans has been rescinded
or annulled in accordance with the Credit Agreement or otherwise (a “
Rescission
Notice
”). Each Rescission Notice
also shall state the date on which the termination of the Revolving Credit
Commitments pursuant to Section 8 of the Credit Agreement or the acceleration
of the Revolving Loans was rescinded or annulled in accordance with the Credit
Agreement or otherwise and, as consequence, the redemption of the Bonds of the
Twenty-fourth Series was rescinded or annulled in accordance with the
Twenty-fourth Supplemental Indenture.
The Corporate Trustee may conclusively presume the statements contained
in any Rescission Notice to be correct (and the Corporate Trustee shall be
fully protected in relying thereon).
Additional Terms
Bonds of the Twenty-fourth Series shall be subject to
the following other terms and conditions:
(I) It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything in this bond or in the Twenty-fourth Supplemental Indenture to the
contrary (other than the provisions of subdivision III below), each payment of
principal of or interest on the Bonds of the Twenty-fourth 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 Revolving
Credit Applicable Share of, a payment of Revolving Credit Obligations that
becomes due and payable on such day in accordance with the Credit Agreement.
(II) The
obligation of the Company to make each payment of principal of or interest on
the Bonds of the Twenty-fourth Series that becomes due and payable in accordance
with the Twenty-fourth Supplemental Indenture (A) shall be fully satisfied
and discharged if the corresponding payment of the Revolving Credit Obligations
shall have been fully paid under and in accordance with the Credit Agreement,
and (B) shall be partially satisfied and discharged if the corresponding
payment of the Revolving Credit Obligations shall have been partially paid
under and in accordance with the Credit Agreement (such partial satisfaction
and discharge with respect to the Bonds of the Twenty-fourth Series to be in an
amount equal to the Revolving Credit Applicable Share of the amount of such
partial payment with respect to the Revolving Credit Obligations).
(III) Nothing
in any of the Bonds of the Twenty-fourth Series (including, without limitation,
any reference to the principal payable with respect to the Bonds of the
Twenty-fourth Series being determined on the basis of the Revolving Credit
Applicable Share of the principal payable with respect to the Revolving Credit
Obligations) shall, or shall be deemed or construed to, increase the aggregate
principal amount of the Bonds of the Twenty-fourth Series that are Outstanding
at any time to an amount in excess of the Maximum Principal Amount as in effect
at such time.
A-9
Exhibit B to
Twenty-fourth Supplemental Indenture
Form of Bond of the Twenty-fifth Series
Exhibit B
[FORM OF FIRST MORTGAGE BOND, COLLATERAL (2004) SERIES
B, DUE 20011]
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR
COLLATERAL AGENT UNDER THE COLLATERAL AGREEMENT
(AS IDENTIFIED AND DEFINED BELOW).
NORTHWESTERN CORPORATION
First Mortgage Bond,
Collateral (2004) Series B, due 2011
NORTHWESTERN CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (the “
Company
”), for
value received, hereby promises to pay to LEHMAN COMMERCIAL PAPER INC., AS
COLLATERAL AGENT UNDER THE BOND DELIVERY AND COLLATERAL AGREEMENT to which
reference is hereinafter made, or (subject to the transfer restrictions
hereinabove and hereinafter described) registered assigns, at the office or
agency of the Company in the Borough of Manhattan, The City of New York, the
sum of
dollars, in installments prior to, and the balance on, November 1, 2011 (the “
Term
Loan Maturity Date
”), in each case, in such amount as is hereinafter
described for such installment or such balance, as applicable, and 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, and to pay to the registered owner
interest thereon as hereinafter described in like coin or currency and at such
office or agency.
The bonds of the series of which this bond is one have
been issued to Lehman Commercial Paper Inc., as collateral agent (together with
its successors in such capacity, the “
Collateral Agent
”) under the Bond
Delivery and Collateral Agreement, dated as of November 1, 2004 (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 Term Loan Applicable Share (as hereinafter defined)
of the principal of and interest on the term loans (the “
Loans
”) made
and outstanding under the Credit Agreement, dated as of November 1, 2004
(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, the several lenders from time to time parties thereto (the “
Lenders
”),
Lehman Brothers Inc. and Deutsche Bank Securities Inc., as joint lead arrangers
and joint bookrunners, Deutsche Bank Securities Inc., as syndication agent,
Union Bank of California, N.A. and KeyBank National Association, as
co-documentation agents, Lehman Commercial Paper Inc., as administrative agent
(in such capacity, the “
Administrative Agent
”) and the Collateral Agent.
B-1
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 set fully forth at this place.
This instrument shall not become obligatory until The
Bank of New York (successor to Morgan Guaranty Trust Company of New York), the
Corporate Trustee under the Mortgage (referred to on the reverse hereof), or
its successors thereunder, shall have signed the form of authentication
certificate endorsed hereon.
IN WITNESS WHEREOF, NORTHWESTERN CORPORATION has
caused this instrument to be signed in its corporate name by its Chairman of
the Board or its President or one of its Vice Presidents by his or her
signature or a facsimile thereof, and its corporate seal to be impressed or
imprinted hereon and attested by its Corporate Secretary or one of its
Corporate Assistant Secretaries by his or her signature or a facsimile thereof.
Dated:
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NORTHWESTERN
CORPORATION
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By:
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[Title]
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Attest:
(Seal)
CORPORATE TRUSTEE’S
AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned Mortgage.
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THE BANK OF NEW
YORK,
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as Corporate Trustee
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By:
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Authorized
Signatory
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B-2
[FORM OF REVERSE OF BOND]
General
This bond is one of an issue of bonds of the Company
issuable in series and is one of a series known as its First Mortgage Bonds,
Collateral (2004) Series B, due 2011 (sometimes herein referred to as the “
Bonds
of the Twenty-fifth Series
”), all bonds of all series issued and to be
issued under and equally secured (except in so far as any sinking or other
fund, established in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any particular
series) by a Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, including the Twenty-fourth Supplemental Indenture dated
as of November 1, 2004 (the “
Twenty-fourth Supplemental Indenture
”),
called the “
Mortgage
”), dated as of October 1, 1945, executed by The Montana
Power Company (NorthWestern Corporation, successor thereunder) to Guaranty
Trust Company of New York (The Bank of New York, successor thereunder) and
Arthur E. Burke (MaryBeth Lewicki, successor thereunder), as Trustees. Reference is made to the Mortgage for a
description of the property mortgaged and pledged, the nature and extent of the
security, the rights of the holders of the bonds and of the Trustees in respect
thereof, the duties and immunities of the Trustees, the terms and conditions
upon which the bonds are and are to be secured, the circumstances under which
additional bonds may be issued and the definition of any capitalized term used
herein but not defined herein. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights and obligations
of the Company and/or the rights of the holders of the bonds and/or coupons
and/or the terms and provisions of the Mortgage may be modified or altered by
affirmative vote of the holders of at least 66-2/3% in principal amount of the
bonds then Outstanding under the Mortgage and, if the rights of the holders of
one or more, but less than all, series of bonds then Outstanding are to be
affected, then also by affirmative vote of the holders of at least 66-2/3% in
principal amount of the bonds then Outstanding of each series of bonds so to be
affected (excluding in any case bonds disqualified from voting by reason of the
Company’s interest therein as provided in the Mortgage);
provided
that, without the consent of the
holder hereof, no such modification or alteration shall, among other things,
impair or affect the right of the holder to receive payment of the principal of
and interest on this bond, on or after the respective due dates expressed
herein, or permit the creation of any lien equal or prior to the lien of the
Mortgage or deprive the holder of the benefit of a lien on the mortgaged and
pledged property.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions, in the manner
and at the time set forth in the Mortgage, upon the occurrence of a default as
in the Mortgage provided.
No recourse shall be had for the payment of the
principal of or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder, officer or
director of the Company or of any predecessor or successor corporation, as
such, either directly or through the Company or any predecessor or successor
B-3
corporation, under any
rule of law, statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, stockholders,
officers and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by the terms of
the Mortgage.
Transfer Provisions and
Restrictions
Bonds of the Twenty-fifth Series shall not be
transferable except to any successor Collateral Agent under the Collateral
Agreement. As a condition precedent to
any transfer of the Bonds of the Twenty-fifth Series by the Collateral Agent,
the Collateral Agent shall submit to the Company, the Corporate Trustee and, if
applicable, any bond registrar or transfer agent for the Bonds of the
Twenty-fifth Series (in addition to all other documents and instruments
required to be submitted pursuant to the Mortgage) a 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 (and the Corporate Trustee may conclusively
presume the statements in any such certificate of the Collateral Agent to be
correct and shall be fully protected in relying thereon).
Any such transfer is to be made as prescribed in the
Mortgage by the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough of Manhattan,
The City of New York, upon surrender and cancellation of the applicable Bond of
the Twenty-fifth Series, and, thereupon, a new fully registered temporary or
definitive bond of the same series for a like principal amount will be issued
to the transferee in exchange therefor as provided in the Mortgage. The Company and the Trustees may deem and
treat the person in whose name any Bond of the Twenty-fifth Series is
registered as the absolute owner thereof for the purpose of receiving payment
and for all other purposes and neither the Company nor the Trustees shall be
affected by any notice to the contrary.
In the manner prescribed in the Mortgage, Bonds of the
Twenty-fifth Series upon surrender thereof, for cancellation, at the office or
agency of the Company in the Borough of Manhattan, The City of New York, are
exchangeable for a like aggregate principal amount of registered bonds of the
same series of other authorized denominations.
As provided in the Mortgage, the Company shall not be
required to make transfers or exchanges of bonds of any series for a period of
ten days next preceding any interest payment date for bonds of said series, or
next preceding any designation of bonds of said series to be redeemed;
provided, however,
that pursuant to a
waiver by the Company in the Twenty-fourth Supplemental Indenture, these
restrictions shall not be applicable to any transfer of the Bonds of the
Twenty-fifth Series to a successor Collateral Agent under the Collateral
Agreement.
B-4
Principal
Principal of the Bonds of the Twenty-fifth Series, of
which this bond is one, is scheduled to be paid as
follows: (i) an installment of the principal of the Bonds of
the Twenty-fifth Series in an amount equal to $180,000 (said amount
representing one quarter of one percent (0.25%) of the original aggregate
principal amount of the Bonds of the Twenty-fifth Series) to be payable on each
March 31, June 30, September 30 and December 31, commencing
March 31, 2005 and continuing through and including September 30,
2010, (ii) an installment of the principal amount of the Bonds of the
Twenty-fifth Series in an amount equal to $16,920,000 (said amount representing
twenty-three and one-half percent (23.5%) of the original aggregate principal amount
of the Bonds of the Twenty-fifth Series) to be payable on
December 31, 2010, March 31, 2011 and June 30, 2011, and
(iii) the balance of the principal of the Bonds of the Twenty-fifth Series
to be payable on the Term Loan Maturity Date; in each case, unless an equal
installment or balance of the principal of the Term Loans is not due and
payable on such day or on the Term Loan Maturity Date, as applicable, in
accordance with the Credit Agreement by reason of prior prepayment of the Term
Loans (in which event, there shall be due and payable on the Bonds of the
Twenty-fifth Series on such day or on the Term Loan Maturity Date, as
applicable, an amount of principal of said Bonds equal to the Term Loan
Applicable Share of the amount of principal of the Term Loans that is payable
on such day or on the Term Loan Maturity Date, as applicable, in accordance
with the Credit Agreement).
Interest
The unpaid principal amount of the Bonds of the
Twenty-fifth 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 Term 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 Term Loans), payable on
each day on which interest is payable on the Term Loans in accordance with the
Credit Agreement (and in an amount equal to the Term Loan Applicable Share of
the amount of interest that is payable on the Term 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.
Term Loan Applicable
Share
As used herein, “
Term Loan Applicable Share
” means,
as of any day, a fraction (expressed as a percentage rounded to the second
decimal place), (i) the numerator of which is the aggregate principal
amount of the Bonds of the Twenty-fifth Series that are Outstanding on such
day, and (ii) the denominator of which is the sum of (a) the
aggregate principal amount of the Bonds of the Twenty-fifth Series that are
Outstanding on such day, plus (b) the aggregate principal amount of the
First Mortgage Bonds, Collateral (2004) Series B, due 2011, of the Company
(the “
South Dakota Term Loan Bonds
”) that are outstanding on such day
under the Company’s South Dakota Mortgage (as defined in the Twenty-fourth
Supplemental Indenture). Simultaneously
with the issuance and registration
B-5
of the Bonds of the
Twenty-fifth Series in the name of the Collateral Agent (for the same purpose),
the South Dakota Term Loan Bonds were issued to the Collateral Agent to secure
the obligations of the Company to pay when due a portion of the principal of
and interest on the Term Loans.
Redemption
Bonds of the Twenty-fifth Series, of which this bond
is one, shall be 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 Term Loans are prepaid
in accordance with the Credit Agreement, Bonds of the Twenty-fifth Series shall
be deemed to have been redeemed in an aggregate principal amount equal to the
Term Loan Applicable Share of the aggregate principal amount of the Term Loans
that are so prepaid on such day (a “
Term Loan Prepayment Redemption
”);
and (B) on each day on which the Term Loans are accelerated in accordance
with the Credit Agreement (an “
Acceleration Redemption Date
”), the
entire aggregate principal amount of the Bonds of the Twenty-fifth Series shall
be subject to mandatory redemption by the Company (the “
Acceleration
Redemption
”); in each case, without any necessity for notice or call by the
Company or by the Corporate Trustee (such notice and call being waived by the
registered owners of the Bonds of the Twenty-fifth Series by the acceptance of
the Bonds of the Twenty-fifth Series and in connection with each Redemption
Demand hereinafter described);
provided
,
however
, that in the event of a rescission or annulment of
the acceleration of the Term Loans pursuant to the Credit Agreement or
otherwise, the related Acceleration Redemption shall be deemed to be rescinded
or annulled (without prejudice to the occurrence of another Acceleration
Redemption upon and by reason of a subsequent acceleration of the Term Loans in
accordance with the Credit Agreement).
Acceleration Redemption of Bonds of the Twenty-fifth Series on an
Acceleration Redemption Date shall be at a redemption price equal to the
principal amount of the Bonds of the Twenty-fifth Series (without premium),
together with interest accrued on said principal to and including such Acceleration
Redemption Date (collectively, an “
Acceleration Redemption Amount
”); and
such Acceleration Redemption Amount shall be due and payable on the Bonds of
the Twenty-fifth Series on such Acceleration Redemption Date. In the event of any failure by the Company to
pay when due the Acceleration Redemption Amount with respect to an Acceleration
Redemption of Bonds of the Twenty-fifth Series, interest shall accrue on such
unpaid Acceleration Redemption Amount at the rates (and in amounts equal to the
Term Loan Applicable Share of the amounts) of interest that accrue on the
corresponding unpaid principal of and interest on the Term Loans in accordance
with the Credit Agreement.
The Corporate Trustee may conclusively presume that no
redemption of Bonds of the Twenty-fifth Series is deemed to have occurred (in
the case of a Term Loan Prepayment Redemption) or is required (in the case of
an Acceleration Redemption) 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 Term Loans have been
B-6
prepaid or have been
accelerated, in either case, in
accordance with the Credit Agreement (a “
Redemption Demand
”). Each Redemption Demand also shall state
(i) the date on which the Term Loans were prepaid or accelerated in
accordance with the Credit Agreement, (ii) the principal amount of the
Term Loans so prepaid or accelerated on such date, (iii) the principal
amount of Bonds of the Twenty-fifth Series that are deemed to have been
redeemed or are to be redeemed on such date in accordance with the
Twenty-fourth Supplemental Indenture by reason of such prepayment or
acceleration, and (iv) in the case of an Acceleration Redemption, the
Redemption Amount payable with respect to the Bonds of the Twenty-fifth Series
(determined in accordance with the Twenty-fourth Supplemental Indenture) and
setting forth the amounts of the respective portions thereof representing principal
of and interest on the Bonds of the Twenty-fifth Series. Each Redemption Demand shall be deemed to
constitute a written waiver by the Collateral Agent, as registered owner of all
Bonds of the Twenty-fifth Series then Outstanding, of notice of redemption and
call for redemption by the Company or the Corporate Trustee of the Bonds of the
Twenty-fifth Series deemed redeemed or subject to redemption as described in
such Redemption Demand. The Corporate
Trustee may conclusively presume the statements contained in each Redemption
Demand to be correct (and the Corporate Trustee shall be fully protected in
relying thereon).
The Corporate Trustee may conclusively presume that no
rescission or annulment of the Acceleration Redemption (in respect of which the
Corporate Trustee has received a Redemption Demand) 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 acceleration of the Term Loans has been rescinded or annulled in accordance
with the Credit Agreement or otherwise (a “
Rescission Notice
”). Each Rescission Notice also shall state the
date on which the acceleration of the Term Loans was rescinded or annulled in
accordance with the Credit Agreement or otherwise and, as consequence, the
redemption of the Bonds of the Twenty-fifth Series was rescinded or annulled in
accordance with the Twenty-fourth Supplemental Indenture. The Corporate Trustee may conclusively
presume the statements contained in any Rescission Notice to be correct (and
the Corporate Trustee shall be fully protected in relying thereon).
Additional Terms
Bonds of the Twenty-fifth Series, of which this bond
is one, shall be subject to the following other terms and conditions:
(I) It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything in this bond or the Twenty-fourth Supplemental Indenture to the
contrary (other than the provisions of subdivision III below) each payment
of principal of or interest on the Bonds of the Twenty-fifth 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
Term Loan Applicable Share of, a payment of principal of or interest on the
Term Loans that becomes due and payable on such day in accordance with the
Credit Agreement.
B-7
(II) The
obligation of the Company to make each payment of principal of or interest on
the Bonds of the Twenty-fifth Series that becomes due and payable in accordance
with the Twenty-fourth Supplemental Indenture (A) shall be fully satisfied
and discharged if the corresponding payment of the principal of or interest on
the Term Loans shall have been fully paid under and in accordance with the
Credit Agreement, and (B) shall be partially satisfied and discharged if
the corresponding payment of the principal of or interest on the Term Loans
shall have been partially paid under and in accordance with the Credit
Agreement (such partial satisfaction and discharge with respect to the Bonds of
the Twenty-fifth Series to be in an amount equal to the Term Loan Applicable
Share of the amount of such partial payment with respect to the Term Loans).
(III) Nothing
in any of the Bonds of the Twenty-fifth Series (including, without limitation,
any reference to the principal payable with respect to the Bonds of the
Twenty-fifth Series being determined on the basis of the Term Loan Applicable Share
of the principal payable with respect to the Term Loans) shall, or shall be
deemed or construed to, (A) increase the aggregate principal amount of the
Bonds of the Twenty-fifth Series that are Outstanding from time to time,
(B) cause or permit an amount of principal of the Bonds of the
Twenty-fifth Series to be or to become due and payable which, when added to all
other principal of such Bonds theretofore paid, exceeds $72,000,000, or
(C) cause or permit to be or to become due and payable interest on the
Bonds of the Twenty-fifth Series which is payable on any principal of the Bonds
of the Twenty-fifth Series that is in excess of the principal of the Bonds of
the Twenty-fifth Series as restricted pursuant to the preceding
clauses (A) and (B).
B-8
Exhibit C to
Twenty-fourth Supplemental Indenture
Form of Bond of the Twenty-sixth Series
Exhibit C
[FORM OF FIRST MORTGAGE BOND, COLLATERAL (2004) SERIES
C, DUE 2014]
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR
TRUSTEE UNDER THE SENIOR NOTE INDENTURE (AS IDENTIFIED AND DEFINED BELOW).
NORTHWESTERN CORPORATION
First Mortgage Bond,
Collateral (2004) Series C, due 2014
NORTHWESTERN CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (the “
Company
”), for
value received, hereby promises to pay to U.S. BANK, NATIONAL ASSOCIATION, AS
TRUSTEE UNDER THE SENIOR NOTE INDENTURE to which reference is hereinafter made,
or (subject to the transfer restrictions hereinbefore and hereinafter
described) registered assigns, at the office or agency of the Company in the
Borough of Manhattan, The City of New York, the sum of
dollars, on November 1, 2014 (the “
Senior Note Maturity Date
”), 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, and to pay to the registered owner
interest thereon as hereinafter described in like coin or currency and at such
office or agency.
The bonds of the series of which this bond is one have
been issued to U.S. Bank, National Association, as trustee (together with its
successors in such capacity, the “
Senior Note Trustee
”) under the
Indenture, dated as of November 1, 2004, between the Company and the
Senior Note Trustee, as supplemented and amended by Supplemental Indenture
No. 1, dated as of November 1, 2004 (as so supplemented and amended
and as may be further supplemented, amended or otherwise modified in accordance
with its terms, the “
Senior Note Indenture
”), to be owned and held by
the Senior Note Trustee under the terms of the Senior Note Indenture as
security for the payment of the principal of, premium (if any) and interest on
a series of senior secured notes of the Company issued pursuant to the Senior
Note Indenture designated “Senior Secured Notes, 5.875% Series A due 2014”
(the “
Series A Senior Notes
”) and, if and to the extent issued and
delivered in exchange for the Series A Senior Notes subject to and in
accordance with the Senior Note Indenture, a series of senior secured notes of
the Company designated “Senior Secured Notes, 5.875% Exchange Series A due
2014” (the “
Series A Exchange Notes
”).
The Series A Notes and, if and to the extent issued in exchange for
Series A Senior Notes subject to and in accordance with the Senior Indenture,
the Series A Exchange Notes are referred to hereinafter, collectively, as the “
Senior
Notes
”. For purposes of the Senior
Note Indenture, Bonds of the Twenty-sixth Series, together with the South
Dakota Senior Notes Bonds (as such term is hereinafter defined), are “the ‘related’
or ‘corresponding’ First Mortgage Bonds” with respect to the Senior Notes.
C-1
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 set fully forth at this place.
This instrument shall not become obligatory until The
Bank of New York (successor to Morgan Guaranty Trust Company of New York), the
Corporate Trustee under the Mortgage (referred to on the reverse hereof), or
its successors thereunder, shall have signed the form of authentication
certificate endorsed hereon.
IN WITNESS WHEREOF, NORTHWESTERN CORPORATION has
caused this instrument to be signed in its corporate name by its Chairman of
the Board or its President or one of its Vice Presidents by his or her
signature or a facsimile thereof, and its corporate seal to be impressed or
imprinted hereon and attested by its Corporate Secretary or one of its
Corporate Assistant Secretaries by his or her signature or a facsimile thereof.
Dated:
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NORTHWESTERN
CORPORATION
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By:
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[Title]
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Attest:
(Seal)
CORPORATE TRUSTEE’S
AUTHENTICATION CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned Mortgage.
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THE BANK OF NEW
YORK,
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as Corporate Trustee
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By:
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Authorized
Signatory
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C-2
[FORM OF REVERSE OF BOND]
General
This bond is one of an issue of bonds of the Company
issuable in series and is one of a series known as its First Mortgage Bonds,
Collateral (2004) Series C, due 2014 (sometimes herein referred to as the “
Bonds
of the Twenty-sixth Series
”), all bonds of all series issued and to be
issued under and equally secured (except in so far as any sinking or other
fund, established in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any particular
series) by a Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, including the Twenty-fourth Supplemental Indenture dated
as of November 1, 2004 (the “
Twenty-fourth Supplemental Indenture
”),
called the “
Mortgage
”), dated as of October 1, 1945, executed by The
Montana Power Company (NorthWestern Corporation, successor thereunder) to
Guaranty Trust Company of New York (The Bank of New York, successor thereunder)
and Arthur E. Burke (MaryBeth Lewicki, successor thereunder), as Trustees. Reference is made to the Mortgage for a
description of the property mortgaged and pledged, the nature and extent of the
security, the rights of the holders of the bonds and of the Trustees in respect
thereof, the duties and immunities of the Trustees, the terms and conditions
upon which the bonds are and are to be secured, the circumstances under which
additional bonds may be issued and the definition of any capitalized term used
herein but not defined herein. With the consent of the Company and to the
extent permitted by and as provided in the Mortgage, the rights and obligations
of the Company and/or the rights of the holders of the bonds and/or coupons
and/or the terms and provisions of the Mortgage may be modified or altered by
affirmative vote of the holders of at least 66-2/3% in principal amount of the
bonds then Outstanding under the Mortgage and, if the rights of the holders of
one or more, but less than all, series of bonds then Outstanding are to be
affected, then also by affirmative vote of the holders of at least 66-2/3% in
principal amount of the bonds then Outstanding of each series of bonds so to be
affected (excluding in any case bonds disqualified from voting by reason of the
Company’s interest therein as provided in the Mortgage);
provided
that, without the consent of the
holder hereof, no such modification or alteration shall, among other things,
impair or affect the right of the holder to receive payment of the principal of
and interest on this bond, on or after the respective due dates expressed
herein, or permit the creation of any lien equal or prior to the lien of the
Mortgage or deprive the holder of the benefit of a lien on the mortgaged and
pledged property.
The principal hereof may be declared or may become due
prior to the maturity date hereinbefore named on the conditions, in the manner
and at the time set forth in the Mortgage, upon the occurrence of a default as
in the Mortgage provided.
No recourse shall be had for the payment of the
principal of or interest on this bond against any incorporator or any past,
present or future subscriber to the capital stock, stockholder, officer or
director of the Company or of any predecessor or successor corporation, as
such, either directly or through the Company or any predecessor or successor
C-3
corporation, under any
rule of law, statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, stockholders,
officers and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by the terms of
the Mortgage.
Transfer Provisions and
Restrictions
Bonds of the Twenty-sixth Series shall not be
transferable except to any successor Senior Note Trustee under the Senior Note
Indenture. As a condition precedent to
any transfer of the Bonds of the Twenty-sixth Series by the Senior Note
Trustee, the Senior Note Trustee shall submit to the Company, the Corporate
Trustee and, if applicable, any bond registrar or transfer agent for the Bonds
of the Twenty-sixth Series (in addition to all other documents and instruments
required to be submitted pursuant to the Mortgage) a certificate of the Senior
Note Trustee, signed by a person purporting to be its duly authorized officer,
certifying that the transferee in such transfer is a successor Senior Note
Trustee under the Senior Note Indenture (and the Corporate Trustee may
conclusively presume the statements in any such certificate of the Senior Note
Trustee to be correct and shall be fully protected in relying thereon).
Any such transfer is to be made as prescribed in the
Mortgage by the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough of Manhattan,
The City of New York, upon surrender and cancellation of the applicable Bond of
the Twenty-sixth Series, and, thereupon, a new fully registered temporary or
definitive bond of the same series for a like principal amount will be issued
to the transferee in exchange therefor as provided in the Mortgage. The Company and the Trustees may deem and
treat the person in whose name any Bond of the Twenty-sixth Series is
registered as the absolute owner thereof for the purpose of receiving payment
and for all other purposes and neither the Company nor the Trustees shall be
affected by any notice to the contrary.
In the manner prescribed in the Mortgage, Bonds of the
Twenty-sixth Series upon surrender thereof, for cancellation, at the office or
agency of the Company in the Borough of Manhattan, The City of New York, are
exchangeable for a like aggregate principal amount of registered bonds of the
same series of other authorized denominations.
As provided in the Mortgage, the Company shall not be
required to make transfers or exchanges of bonds of any series for a period of
ten days next preceding any interest payment date for bonds of said series, or
next preceding any designation of bonds of said series to be redeemed;
provided, however,
that pursuant to a
waiver by the Company in the Twenty-fourth Supplemental Indenture, these
restrictions shall not be applicable to any transfer of the Bonds of the
Twenty-sixth Series to a successor Senior Note Trustee under the Senior Note
Indenture.
C-4
Principal
The unpaid principal of the Bonds of the Twenty-sixth
Series, of which this bond is one, is scheduled to be paid on the Senior Notes
Maturity Date.
Interest
The unpaid principal amount of the Bonds of the
Twenty-sixth Series, of which this bond is one, bears interest at the rate of
five and seven-eighths percent 5.875% per annum (calculated in the same manner
as interest is calculated on the Senior Notes in accordance with the Senior
Note Indenture), payable semiannually on the first (1st) day of each May and
November, commencing on May 1, 2005 and continuing until the
principal of the Bonds of the Twenty-sixth Series is paid (or provided for in
accordance with the Senior Note Indenture), to the Senior Note Trustee as the
registered owner, without regard to, or necessity for, any record date.
Senior Notes Applicable
Share
As used herein, “
Senior Notes 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 Bonds of the Twenty-sixth Series that are Outstanding
on such day, and (ii) the denominator of which is the sum of (a) the
aggregate principal amount of the Bonds of the Twenty-sixth Series that are
Outstanding on such day, plus (b) the aggregate principal amount of the
First Mortgage Bonds, Collateral (2004) Series C, due 2014, of the Company
(the “
South Dakota Senior Notes Bonds
”) that are outstanding on such day
under the Company’s South Dakota Mortgage (as defined in the Twenty-fourth
Supplemental Indenture). Simultaneously
with issuance and registration of the Bonds of the Twenty-sixth Series in the
name of the Senior Note Trustee (for the same purpose), the South Dakota Senior
Notes Bonds were issued to and registered in the name of the Senior Note
Trustee, to be owned and held by the Senior Note Trustee under the terms of the
Senior Note Indenture as security for the payment of the principal of, premium
(if any) and interest on the Senior Notes.
Redemption
Bonds of the Twenty-sixth Series, of which this bond
is one, shall be 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 Senior Notes become due
and payable in accordance with Section 405 of the Senior Note Indenture by
reason of redemption in accordance with the Senior Note Indenture (a “
Senior
Notes Redemption Payment Date
”), Bonds of the Twenty-sixth Series shall be
subject to mandatory redemption by the Company in an aggregate principal amount
equal to the Senior Notes Applicable Share of the aggregate principal amount of
the Senior Notes that become so due and payable on such Senior Notes Redemption
Payment Date (a “
Corresponding
C-5
Redemption
”);
and (B) on each day on which the Senior Notes become due and payable in
accordance with Section 702 of the Senior Note Indenture by reason of
acceleration of the Senior Notes in accordance with the Senior Note Indenture
(a “
Senior Notes Acceleration Payment Date
”), the entire aggregate
principal amount of the Bonds of the Twenty-sixth Series shall be subject to
mandatory redemption by the Company (an “
Acceleration Redemption
”); in
each case, without any necessity for notice or call by the Company or by the
Corporate Trustee (such notice and call being waived by the registered owners
of the Bonds of the Twenty-sixth Series by the acceptance of the Bonds of the
Twenty-sixth Series and in connection with each Redemption Demand hereinafter
described);
provided
,
however
, that in the event of a rescission
or annulment of the acceleration of the Senior Notes pursuant to the Senior
Note Indenture, the related Acceleration Redemption shall be deemed to be
rescinded or annulled (without prejudice to the occurrence of another
Acceleration Redemption upon and by reason of a subsequent acceleration of the
Senior Notes in accordance with the Senior Note Indenture).
Each Corresponding Redemption of Bonds of the
Twenty-sixth Series on a Senior Notes Redemption Payment Date shall be at a
redemption price equal to the redemption price payable in connection with the
redemption of Senior Notes to which it corresponds (consisting of principal of
and, if applicable to such redemption of Senior Notes in accordance with the
Senior Note Indenture, premium on such Senior Notes), together with interest
accrued on the principal included in such redemption price to such Senior Notes
Redemption Payment Date (a “
Corresponding Redemption Amount
”); and such
Corresponding Redemption Amount shall be due and payable on such Senior Notes
Redemption Payment Date. Each
Acceleration Redemption of Bonds of the Twenty-sixth Series on a Senior Notes
Acceleration Payment Date shall be at a redemption price equal to the principal
amount of the Bonds of the Twenty-sixth Series (without premium), together with
interest accrued on said principal to such Senior Notes Acceleration Payment
Date (an “
Acceleration Redemption Amount
”); and such Acceleration
Redemption Amount shall be due and payable on such Senior Notes Acceleration Payment
Date. In the event of any failure by the
Company to pay when due the Corresponding Redemption Amount with respect to a
Corresponding Redemption of Bonds of the Twenty-sixth Series or the
Acceleration Redemption Amount with respect to an Acceleration Redemption of
Bonds of the Twenty-sixth Series, interest shall accrue on such unpaid
Corresponding Redemption Amount or such unpaid Acceleration Redemption Amount
at the rates (and in amounts equal to the Senior Notes Applicable Share of the
amounts) of interest that accrue on the corresponding unpaid principal of,
premium (if any) and interest on the Senior Notes in accordance with the Senior
Note Indenture.
The Corporate Trustee may conclusively presume that no
redemption of Bonds of the Twenty-sixth Series is required unless and until it
shall have received a written notice from the Senior Note Trustee, signed by a
person purporting to be its duly authorized officer, stating that Senior Notes
became due and payable pursuant to Section 405 or 702 of the Senior Note
Indenture by reason of redemption or acceleration in accordance with the Senior
Note Indenture (a “
Redemption Demand
”).
Each Redemption Demand also shall
C-6
state (i) the date on
which Senior Notes became due and payable by reason of redemption or
acceleration in accordance with the Senior Note Indenture, (ii) the principal
amount of the Senior Notes that became so due and payable on such date, (iii)
the principal amount of Bonds of the Twenty-sixth Series to be redeemed on such
date in accordance with this Twenty-fourth Supplemental Indenture by reason of
such redemption or acceleration, and (iv) the Corresponding Redemption Amount
or the Acceleration Redemption Amount payable on such date with respect to
Bonds of the Twenty-sixth Series (determined in accordance with the
Twenty-fourth Supplemental Indenture) and setting forth the amounts of the
respective portions thereof representing principal of, premium (if any) and
interest on the Bonds of the Twenty-sixth Series. Each Redemption Demand shall be deemed to
constitute a waiver by the Senior Note Trustee, as registered owner of all
Bonds of the Twenty-sixth Series then Outstanding, of notice of redemption and
call for redemption by the Company or the Corporate Trustee of the Bonds of the
Twenty-sixth Series subject to redemption as described in such Redemption
Demand. The Corporate Trustee may
conclusively presume the statements contained in each Redemption Demand to be
correct (and the Corporate Trustee shall be fully protected in relying
thereon).
The Corporate Trustee may conclusively presume that no
rescission or annulment of an Acceleration Redemption (in respect of which the
Corporate Trustee has received a Redemption Demand) is required unless and
until it shall have received a written notice from the Senior Note Trustee,
signed by a person purporting to be its duly authorized officer, stating that
the acceleration of the Senior Notes has been rescinded or annulled in
accordance with the Senior Note Indenture (a “
Rescission Notice
”). Each Rescission Notice also shall state the
date on which the acceleration of the Senior Notes was rescinded or annulled in
accordance with the Senior Note Indenture and, as consequence, the acceleration
of the Bonds of the Twenty-sixth Series was rescinded or annulled in accordance
with the Twenty-fourth Supplemental Indenture.
The Corporate Trustee may conclusively presume the statements contained
in any Rescission Notice to be correct (and the Corporate Trustee shall be
fully protected in relying thereon).
Additional Terms
Bonds of the Twenty-sixth Series, of which this bond
is one, shall be subject to the following other terms and conditions:
(I) It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything in this bond or the Twenty-fourth Supplemental Indenture to the
contrary (other than the provisions of subdivision (III) below), each
payment of principal of, premium (if any) or interest on the Bonds of the
Twenty-sixth 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 Senior Notes Applicable Share of, a payment of principal
of, premium (if any) or interest on the Senior Notes that becomes due and
payable on such day in accordance with the Senior Note Indenture.
C-7
(II) The
obligation of the Company to make each payment of principal of, premium (if
any) or interest on the Bonds of the Twenty-sixth Series that becomes due and
payable in accordance with the Twenty-fourth Supplemental Indenture
(A) shall be fully satisfied and discharged if the corresponding payment
of the principal of, premium (if any) or interest on the Senior Notes shall
have been fully paid, or if provision for the full payment thereof shall been
made (by depositing moneys sufficient for such full payment with the Senior
Note Trustee), in either case under and in accordance with the Senior Note
Indenture, and (B) shall be partially satisfied and discharged if the
corresponding payment of the principal of, premium (if any) or interest on the
Senior Notes shall have been partially paid, or if provision for the partial
payment thereof shall have been made (by depositing moneys sufficient for such
partial payment with the Senior Note Trustee), in either case, under and in
accordance with the Senior Note Indenture (such partial satisfaction and
discharge with respect to the Bonds of the Twenty-sixth Series to be in an
amount equal to the Senior Notes Applicable Share of the amount of such partial
payment or provision for partial payment with respect to the Senior Notes).
(III) Nothing
in any of the Bonds of the Twenty-sixth Series (including, without limitation,
any reference to the principal payable with respect to the Bonds of the
Twenty-sixth Series being determined on the basis of the Senior Notes
Applicable Share of the principal payable with respect to the Senior Notes)
shall, or shall be deemed or construed to, (A) increase the aggregate
principal amount of the Bonds of the Twenty-sixth Series that are Outstanding
from time to time, (B) cause or permit an amount of principal of the Bonds
of the Twenty-sixth Series to be or to become due and payable which, when added
to all other principal of such Bonds theretofore paid, exceeds $161,000,000, or
(C) cause or permit to be or to become due and payable interest on the
Bonds of the Twenty-sixth Series which is payable on any principal of the Bonds
of the Twenty-sixth Series that is in excess of the principal of the Bonds of
the Twenty-sixth Series as restricted pursuant to the preceding
clauses (A) and (B).
C-8
Exhibit
4.5
NORTHWESTERN CORPORATION
TO
JPMORGAN CHASE BANK
as Trustee
SUPPLEMENTAL INDENTURE
Providing, among other things, for
First Mortgage Bonds, Collateral (2004) Series A,
due 2009
First Mortgage Bonds, Collateral (2004) Series B, due 2011
and
First Mortgage Bonds, Collateral (2004) Series C, due 2014
Dated as of November 1, 2004
SUPPLEMENTAL INDENTURE, dated as of November 1,
2004 (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, 15
th
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 six indentures supplemental to the Original Indenture,
the first dated as of August 15, 1993, the second dated as of August 1, 1995,
each of the third, fourth and fifth dated as of September 1, 1995, and the
sixth dated as of February 1, 2003 (the Original Indenture, as supplemented and
amended by the aforementioned six supplemental indentures and by this
Supplemental Indenture, being hereinafter referred to as the “
Indenture
”);
and
WHEREAS, the Company desires to create three new
series of Bonds to be issued under the Indenture, to be known respectively as First
Mortgage Bonds, Collateral (2004) Series A, due 2009 (the “
First
Mortgage Bonds, Collateral (2004) Series A
”), First Mortgage Bonds,
Collateral (2004) Series B, due 2011 (the “
First Mortgage Bonds,
Collateral (2004) Series B
”) and First Mortgage Bonds, Collateral
(2004) Series C, due 2014 (the “
First Mortgage Bonds, Collateral (2004)
Series C
”); 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 FIRST MORTGAGE BONDS, COLLATERAL (2004)
SERIES A
SECTION 1. The Company hereby creates a new series of
Bonds to be known as “First Mortgage Bonds, Collateral (2004) Series A,
due 2009”. The First Mortgage Bonds,
Collateral (2004) Series A 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 First Mortgage Bonds, Collateral (2004) Series A which may be
authenticated and delivered under the Indenture (except for First Mortgage
Bonds, Collateral (2004) Series A authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other First
Mortgage Bonds, Collateral (2004) Series A pursuant to the Indenture and
except for First Mortgage Bonds, Collateral (2004) Series A which,
pursuant to the Indenture, are deemed never to have been authenticated and
delivered under the Indenture) is limited to $35,000,000.
First Mortgage Bonds, Collateral (2004) Series A
shall be issued to Lehman Commercial Paper Inc., as collateral agent (together
with its successors in such capacity, the “
Collateral Agent
”) under the
Bond Delivery and Collateral Agreement, dated as of November 1, 2004 (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 Revolving Credit Applicable Share (as hereinafter
defined) of the Revolving Credit Obligations (as hereinafter defined) under the
Credit Agreement, dated as of November 1, 2004 (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
”),
Lehman Brothers Inc. and Deutsche Bank Securities Inc., as joint lead arrangers
and joint bookrunners, Deutsche Bank Securities Inc., as syndication agent, Union
Bank of California, N.A. and KeyBank National Association, as co-documentation
agents, Lehman Commercial Paper Inc., as administrative agent (together with
its successors in such capacity, the “
Administrative Agent
”) and the
Collateral Agent.
As used herein, “
Revolving Credit Obligations
”
means the obligations of the Company (A) to pay (i) principal of and interest
on (a) the Revolving Credit Loans (as defined in the Credit Agreement), (b) the
Swing Line Loans (as defined in the Credit Agreement), and (c) drawings under
Letters of Credit that are not reimbursed pursuant to and in accordance with
the Credit Agreement (collectively, “
Revolving Loans
”),
(ii) commitment fees on the average daily amount of the unused Total
Revolving Credit Commitments (as defined in the Credit Agreement); and (iii)
letter of credit fees on the amount available to be drawn under Letters of
Credit (as defined in the Credit
2
Agreement), and (B) to cash collateralize Letters of
Credit pursuant to and in accordance with Section 8 of the Credit Agreement.
As used herein, “
Revolving Credit Applicable Share
”
means, as of any day, a fraction (expressed as a percentage rounded to the
second decimal place), (i) the numerator of which is the aggregate
principal amount of the First Mortgage Bonds, Collateral (2004) Series A that
are Outstanding on such day, and (ii) the denominator of which is the sum
of (a) the aggregate principal amount of the First Mortgage Bonds,
Collateral (2004) Series A that are Outstanding on such day, plus (b) the
aggregate principal amount of the First Mortgage Bonds, Collateral (2004)
Series A, due 2009, of the Company (the “
Montana Revolving Credit 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
”). Simultaneously with the issuance and
registration of the First Mortgage Bonds, Collateral (2004) Series A in the
name of the Collateral Agent (for the same purpose), the Montana Revolving
Credit Bonds will be issued to the Collateral Agent to secure the Revolving
Credit Obligations under the Credit Agreement.
Initially, the Revolving Credit Applicable Share will be 28.00% (being
the expression as a percentage (rounded to the second decimal place) of a
fraction, the numerator of which is $35,000,000 (the aggregate principal amount
of the First Mortgage Bonds, Collateral (2004) Series A that are to be issued
and become Outstanding) and the denominator of which is $125,000,000 (the sum
of $35,000,000, the aggregate principal amount of the First Mortgage Bonds,
Collateral (2004) Series A that are to be issued and become Outstanding, plus $90,000,000,
the aggregate principal amount of the Montana Revolving Credit Bonds that are
to be issued and become outstanding under the Montana Mortgage simultaneously
with the issuance of the First Mortgage Bonds, Collateral (2004) Series A). Pursuant to the Collateral Agreement, the
Collateral Agent has agreed to furnish to the Trustee (with a copy to the
Company) as soon as practicable after any change in the Revolving Credit
Applicable Share, a certificate, signed by a person purporting to be its duly
authorized officer, notifying the Trustee of such change in the Revolving
Credit Applicable Share (a “
Revolving Credit Applicable Share Certificate
”). Each Revolving Credit Applicable Share
Certificate shall set forth (i) the changed Revolving Credit Applicable
Share, (ii) the date such change occurred, (iii) the aggregate
principal amount of the First Mortgage Bonds, Collateral (2004) Series A then
Outstanding, and (iv) the aggregate principal amount of the Montana Revolving
Credit Bonds then outstanding under the Montana Mortgage. The Trustee may conclusively presume that the
Revolving Credit Applicable Share is 28.00% unless and until the Trustee
receives a Revolving Credit Applicable Share Certificate. Following receipt by the Trustee of a
Revolving Credit Applicable Share Certificate, the Trustee may conclusively
presume that the Revolving Credit Applicable Share is as set forth in such
Revolving Credit Applicable Share Certificate unless and until the Trustee
receives a subsequent Revolving Credit Applicable Share Certificate (and the
Trustee shall be fully protected in relying thereon).
First Mortgage Bonds, Collateral (2004) Series A shall
mature on November 1, 2009 (the “
Revolving Credit Maturity Date
”), with
the unpaid principal of the First
3
Mortgage Bonds, Collateral (2004) Series A to be
payable on the Revolving Credit Maturity Date; the unpaid principal amount of
the First Mortgage Bonds, Collateral (2004) Series A shall bear interest (i)
with respect to the portion or amount of such principal that is equal to the
principal amount of Revolving Loans, 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 Revolving 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 Revolving Loans), payable on each day on which
interest is payable on Revolving Loans in accordance with the Credit Agreement
(and in an amount equal to the Revolving Credit Applicable Share of the amount
of interest that is payable on Revolving Loans on such day in accordance with
the Credit Agreement), (ii) with respect to the portion or amount of such
principal (in excess of the amount described in the preceding clause (i)) that
is equal to the Revolving Credit Applicable Share of the unused Total Revolving
Credit Commitments (as defined in the Credit Agreement), at one or more
variable interest rates per annum which rate or rates for any day shall be
equal to the rate or rates per annum at which commitment fees are payable under
the Credit Agreement on the unused Total Revolving Credit Commitments, payable
on each day on which commitment fees are payable under the Credit Agreement
(and in an amount equal to the Revolving Credit Applicable Share of the amount
of commitment fees that is payable under the Credit Agreement on such day), and
(iii) with respect to the portion or amount of such principal (in excess of the
amounts described in the preceding clauses (i) and (ii)) that is equal to the
Revolving Credit Applicable Share of the amount available to be drawn under
Letters of Credit (as defined in the Credit Agreement), 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 at which letter of credit fees are payable under the
Credit Agreement on the amount available to be drawn under Letters of Credit, payable
on each day on which letter of credit fees are payable under the Credit
Agreement (and in an amount equal to the Revolving Credit Applicable Share of
the amount of letter of credit fees that is payable under the Credit Agreement
on such day), in each case, to the Collateral Agent, as the registered owner,
without regard to, or 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. First Mortgage
Bonds, Collateral (2004) Series A shall be dated as provided in Section 3.03(c)
of the Original Indenture (as supplemented).
SECTION 2. First Mortgage Bonds, Collateral (2004) Series A
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. First Mortgage Bonds,
Collateral (2004) Series A 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 First Mortgage Bonds, Collateral
(2004) Series A of other authorized denominations, for the same aggregate
principal amount, subject to the terms and conditions set forth in the
Indenture.
First Mortgage Bonds, Collateral (2004) Series A
shall not be transferable except to any successor Collateral Agent under the
Collateral Agreement. As a condition
4
precedent to any transfer of the First Mortgage Bonds,
Collateral (2004) Series A 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 officer, certifying
that the transferee in such transfer is a successor Collateral Agent under 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).
Any transfer of First Mortgage Bonds, Collateral
(2004) Series A (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 First Mortgage Bonds, Collateral (2004) Series A to a
successor Collateral Agent under the Collateral Agreement, 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 First Mortgage Bonds, Collateral (2004) Series A
by the Collateral Agent, 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 First Mortgage Bonds, Collateral
(2004) Series A by the Collateral Agent).
The Company has appointed JPMorgan Chase Bank as its
agent to receive First Mortgage Bonds, Collateral (2004) Series A
presented or surrendered for payment, to receive First Mortgage Bonds,
Collateral (2004) Series A surrendered for registration of transfer or
exchange and to receive notices and demands to or upon the Company in respect
of the First Mortgage Bonds, Collateral (2004) Series A 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. First Mortgage Bonds, Collateral (2004) Series A
shall be subject to the following terms and conditions (including, without
limitation, redemption terms and conditions):
(I) From
time to time after the issuance of the First Mortgage Bonds, Collateral (2004)
Series A, and as Revolving Loans are prepaid and reborrowed subject to and in
accordance with the Credit Agreement, (A) for purposes of determining the
amount of principal payable by the Company with respect to the First Mortgage
Bonds, Collateral (2004) Series A, the unpaid principal amount of the First
Mortgage Bonds, Collateral (2004) Series A at any time shall be deemed to be
equal to the Revolving Credit Applicable Share of the unpaid principal amount
of the Revolving Loans at such time, plus, if an acceleration of the Revolving
Loans shall be in effect in accordance with the Credit Agreement at such time,
the amount of cash collateral required to be provided by the Company pursuant
to Section 8 of the Credit Agreement in respect of Letters of
5
Credit, and (B) for all other purposes of the
Indenture (including, without limitation, the determination of the amount of
principal on which interest is payable and the determination of the principal
amount with respect to which the Collateral Agent, as registered owner, is
entitled to vote or otherwise exercise rights as registered owner), the First
Mortgage Bonds, Collateral (2004) Series A shall be deemed to be “Outstanding”
at any time in an aggregate principal amount equal to the Maximum Principal
Amount at such time. Pursuant to (and by
reason of the provisions of Section 10.2 of) the Credit Agreement, the
Administrative Agent has agreed to submit to the Trustee (with copies to the
Collateral Agent and the Company), from time to time promptly after the request
of the Trustee or the Company, a written statement, signed by a person
purporting to be its duly authorized officer (an “
Unpaid Principal Amount
Statement
”) stating the unpaid principal amount of the Revolving Loans
(and, as a consequence, of the principal amount of the First Mortgage Bonds,
Collateral (2004) Series A payable by the Company) as of the date of such
Unpaid Principal Amount Statement, setting forth the portions or amounts of the
Revolving Loans that are Revolving Credit Loans, Swing Line Loans and unreimbursed
drawings under Letters of Credit. The
Trustee may conclusively presume the statements contained in each Unpaid
Principal Amount Statement to be correct (and the Trustee shall be fully
protected in relying thereon).
(II) The
Maximum Principal Amount on and as of the date of original issuance of the
First Mortgage Bonds, Collateral (2004) Series A shall be $35,000,000 (which
amount shall be equal to the Revolving Credit Applicable Share of the Total
Revolving Credit Commitments on and as of such date) and thereafter shall be
reduced from time to time upon each Revolving Credit Commitment Redemption (as
hereinafter defined in subdivision III below) and each Revolving Credit
Event of Default Commitment Termination Redemption (as hereinafter defined in
subdivision III below), in each case, by an amount equal to the aggregate
principal amount of the First Mortgage Bonds, Collateral (2004) Series A that
are deemed to have been redeemed pursuant to such Revolving Credit Commitment
Redemption or such Revolving Credit Event of Default Commitment Termination Redemption.
(III) First
Mortgage Bonds, Collateral (2004) Series A shall be 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 there is a permanent reduction or termination of the Revolving Credit
Commitments (as defined in the Credit Agreement) pursuant to Section 2.10 of
the Credit Agreement, First Mortgage Bonds, Collateral (2004) Series A shall be
deemed to have been redeemed in an aggregate principal amount equal to the
Revolving Credit Applicable Share of the amount of such permanent reduction or
termination of the Revolving Credit Commitments pursuant to such Section 2.10
(a “
Revolving Credit Commitment Redemption
”); (B) on each day on
which the Revolving Credit Commitments are permanently terminated pursuant to
Section 8 of the Credit Agreement, First Mortgage Bonds, Collateral (2004)
Series A shall be deemed to have been redeemed in an aggregate principal amount
which, after giving effect to such termination, results in the Maximum
Principal Amount of the First Mortgage Bonds, Collateral (2004) Series A being
equal to the Revolving Credit Applicable Share of the sum of the principal
amount of the Revolving Loans then
6
outstanding under the Credit Agreement and the amount
then available to be drawn under Letters of Credit (a “
Revolving Credit
Event of Default Commitment Termination Redemption
”); and (C) on each day
on which the Revolving Loans are accelerated in accordance with the Credit
Agreement (an “
Acceleration Redemption Date
”), the entire aggregate
principal amount of the First Mortgage Bonds, Collateral (2004) Series A shall
be subject to mandatory redemption by the Company (an “
Acceleration
Redemption
”); in each case, without any necessity for notice or call by the
Company or by the Trustee (such notice and call being waived by the registered
owners of the First Mortgage Bonds, Collateral (2004) Series A by the
acceptance of the First Mortgage Bonds, Collateral (2004) Series A and in
connection with each Redemption Demand hereinafter described);
provided
,
however
, that in the event of a reinstatement of the Revolving Credit
Commitments or a rescission or annulment of the acceleration of the Revolving
Loans pursuant to the Credit Agreement or otherwise, the related Revolving
Credit Event of Default Commitment Termination Redemption or the related
Acceleration Redemption shall be deemed to be rescinded or annulled, without
prejudice to the occurrence of another Revolving Credit Event of Default
Commitment Termination Redemption or another Acceleration Redemption upon and
by reason of a subsequent termination of the Revolving Credit Commitments
pursuant to Section 8 of the Credit Agreement or another acceleration of the
Revolving Loans in accordance with the Credit Agreement. Acceleration Redemption of the First Mortgage
Bonds, Collateral (2004) Series A on an Acceleration Redemption Date shall be
at a redemption price equal to the principal amount (determined in accordance
with the provisions of subdivision II above) of the First Mortgage Bonds,
Collateral (2004) Series A that is then payable by the Company (without
premium), together with interest accrued on said principal to and including
such Acceleration Redemption Date (collectively, an “
Acceleration Redemption
Amount
”); and such Acceleration Redemption Amount shall be due and payable
on such Acceleration Redemption Date. In
the event of any failure by the Company to pay when due an Acceleration
Redemption Amount, interest shall accrue on such unpaid Acceleration Redemption
Amount at the rates (and in amounts equal to the Revolving Credit Applicable
Share of the amounts) of interest that accrue on the corresponding unpaid
principal of and interest on the Revolving Loans in accordance with the Credit
Agreement.
The Trustee may conclusively presume that no redemption
of First Mortgage Bonds, Collateral (2004) Series A is deemed to have occurred
or resulted in a reduction of the Maximum Principal Amount (in the case of a
Revolving Credit Commitment Redemption or a Revolving Credit Event of Default
Commitment Termination Redemption) or is required to occur (in the case of an
Acceleration Redemption) 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 Revolving Credit Commitments have
been permanently reduced or terminated pursuant to Section 2.10 of the Credit
Agreement or the Revolving Credit Commitments have been permanently terminated
pursuant to Section 8 of the Credit Agreement or the Revolving Loans have been
accelerated in accordance with the Credit Agreement (a “
Redemption Demand
”). Each Redemption Demand also shall (i) state
the date on which the Revolving Credit Commitments were permanently reduced or
terminated pursuant to Section 2.10 of the Credit Agreement or the Revolving
Credit Commitments were permanently terminated
7
pursuant to Section 8 of the Credit Agreement or the
Revolving Loans were accelerated, (ii) the amount by which the Revolving Credit
Commitments were so permanently reduced or terminated and the Maximum Principal
Amount (determined in accordance with this Supplemental Indenture) after giving
effect to the related and deemed redemption of First Mortgage Bonds, Collateral
(2004) Series A or the principal amount of the Revolving Loans subject to
acceleration on such date, (iii) the principal amount of First Mortgage Bonds,
Collateral (2004) Series A that are deemed to have been redeemed or are to be
redeemed on such date in accordance with this Supplemental Indenture by reason
of such permanent reduction or termination of the Revolving Credit Commitments
and such reduction of the Maximum Principal Amount or such acceleration of the
Revolving Loans, and (iv) in the case of an Acceleration Redemption, the
Acceleration Redemption Amount payable with respect to the First Mortgage
Bonds, Collateral (2004) Series A (determined in accordance with this
Supplemental Indenture) and setting forth the amounts of the respective portions
thereof representing principal of and interest on the First Mortgage Bonds,
Collateral (2004) Series A. Each
Redemption Demand shall be deemed to constitute a written waiver by the
Collateral Agent, as registered owner of all First Mortgage Bonds, Collateral
(2004) Series A then Outstanding, of notice of redemption and call for
redemption by the Company or the Trustee of the First Mortgage Bonds,
Collateral (2004) Series A subject to redemption as described in such
Redemption Demand. The Trustee may conclusively
presume the statements contained in each Redemption Demand to be correct (and
the Trustee shall be fully protected in relying thereon).
The Trustee may conclusively presume that no
rescission or annulment of a Revolving Credit Event of Default Commitment Termination
Redemption or an Acceleration Redemption (in respect of which the Trustee has
received a Redemption Demand) 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 termination of
the Revolving Credit Commitments pursuant to Section 8 of the Credit Agreement
or the acceleration of the Revolving Loans has been rescinded or annulled in
accordance with the Credit Agreement or otherwise (a “
Rescission Notice
”). Each Rescission Notice also shall state the
date on which the termination of the Revolving Credit Commitments pursuant to
Section 8 of the Credit Agreement or the acceleration of the Revolving Loans
was rescinded or annulled in accordance with the Credit Agreement or otherwise
and, as consequence, the redemption of the First Mortgage Bonds, Collateral
(2004) Series A was rescinded or annulled in accordance with this Supplemental
Indenture. The Trustee may conclusively
presume the statements contained in any Rescission Notice to be correct (and
the Trustee shall be fully protected in relying thereon).
Pursuant to (and by reason of the provisions of
Section 10.2 of) the Credit Agreement, the Administrative Agent has agreed to
submit to the Trustee (with copies to the Collateral Agent and the Company) (i) a
Redemption Demand with respect to, and in connection with, each event that
gives rise to a redemption (deemed or actual) of First Mortgage Bonds, Collateral
(2004) Series A, and (ii) a Rescission Notice in connection with any event
that gives rise to the rescission or annulment of a Revolving Credit Event of
Default Commitment Termination Redemption or an Acceleration Redemption.
8
Pursuant to the Collateral Agreement, the Collateral
Agent has agreed, upon written request of the Company and so long as no Default
or Event of Default described in Section 8(f) of the Credit Agreement
shall have occurred and be continuing, to surrender or exchange its First
Mortgage Bond, Collateral (2004) Series A or First Mortgage Bonds,
Collateral (2004) Series A, from time to time (including, without limitation,
promptly following each redemption of First Mortgage Bonds, Collateral (2004)
Series A that is deemed to occur (in the case of a Revolving Credit Commitment
Redemption or a Revolving Credit Event of Default Commitment Termination Redemption)
or that occurs (in the case of an Acceleration Redemption) in accordance with
this Supplemental Indenture), so that at all times the Collateral Agent is
holding one or more First Mortgage Bonds, Collateral (2004) Series A in an
aggregate principal amount equal to, but not in excess of, the Maximum Principal
Amount of the First Mortgage Bonds, Collateral (2004) Series A at such time.
(IV) It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything herein or in any First Mortgage Bonds, Collateral (2004) Series A to
the contrary (other than the provisions of subdivision VI below), each payment
of principal of or interest on the First Mortgage Bonds, Collateral (2004)
Series A 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 Revolving Credit
Applicable Share of, a payment of Revolving Credit Obligations that becomes due
and payable on such day in accordance with the Credit Agreement.
(V) The
obligation of the Company to make each payment of principal of or interest on
the First Mortgage Bonds, Collateral (2004) Series A that becomes due and
payable in accordance with this Supplemental Indenture (A) shall be fully
satisfied and discharged if the corresponding payment of the Revolving Credit
Obligations shall have been fully paid under and in accordance with the Credit
Agreement, and (B) shall be partially satisfied and discharged if the
corresponding payment of the Revolving Credit Obligations shall have been partially
paid under and in accordance with the Credit Agreement (such partial
satisfaction and discharge with respect to the First Mortgage Bonds, Collateral
(2004) Series A to be in an amount equal to the Revolving Credit Applicable
Share of the amount of such partial payment with respect to the Revolving
Credit Obligations). The Trustee may
conclusively presume that the obligation of the Company to make payments with
respect to the principal of and interest on the First Mortgage Bonds,
Collateral (2004) Series A has 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 Revolving Credit Obligations which became due and payable in
accordance with the Credit Agreement, (ii) the amount and date of such
payment of Revolving Credit Obligations 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 First Mortgage Bonds, Collateral (2004) Series A 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
9
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 (V) (and the Trustee shall be fully protected in relying
thereon). Without limitation of the foregoing,
and for the avoidance of any doubt, it is expressly stated that the Trustee
shall not be responsible for (i) the calculation of interest on the First
Mortgage Bonds, Collateral (2004) Series A, or (ii) the determination of
any amount (including, without limitation, any amount of the Revolving Credit
Obligations) that is payable or paid under the Credit Agreement.
(VI) Nothing
herein or in any of the First Mortgage Bonds, Collateral (2004) Series A
(including, without limitation, any reference to the principal payable with
respect to the First Mortgage Bonds, Collateral (2004) Series A being
determined on the basis of the Revolving Credit Applicable Share of the
principal payable with respect to the Revolving Credit Obligations) shall, or
shall be deemed or construed to, increase the aggregate principal amount of the
First Mortgage Bonds, Collateral (2004) Series A that are Outstanding at any
time to an amount in excess of the Maximum Principal Amount at such time.
SECTION 4. The First Mortgage Bonds, Collateral (2004) Series A
and the Trustee’s Certificate of Authentication shall be substantially in the
form attached hereto as
Exhibit A
.
ARTICLE II
DESCRIPTION OF FIRST MORTGAGE BONDS, COLLATERAL (2004)
SERIES B
SECTION 1. The Company hereby creates a new series of
Bonds to be known as “First Mortgage Bonds, Collateral (2004) Series B,
due 2011.” The First Mortgage Bonds,
Collateral (2004) Series B 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 First Mortgage Bonds, Collateral (2004) Series B which may be
authenticated and delivered under the Indenture (except for First Mortgage
Bonds, Collateral (2004) Series B authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other First
Mortgage Bonds, Collateral (2004) Series B pursuant to the Indenture and
except for First Mortgage Bonds, Collateral (2004) Series B which,
pursuant to the Indenture, are deemed never to have been authenticated and
delivered under the Indenture) is limited to $28,000,000.
First Mortgage Bonds, Collateral (2004) Series B
shall be issued to the Collateral Agent to secure the obligations of the
Company to pay when due the Term Loan Applicable Share (as hereinafter defined)
of the principal of and interest on the term loans (the “
Term Loans
”)
made and outstanding under the Credit Agreement.
As used herein, “
Term Loan Applicable Share
”
means, as of any day, a fraction (expressed as a percentage rounded to the
second decimal place), (i) the numerator of which is the aggregate
principal amount of the First Mortgage Bonds, Collateral (2004) Series B
that are Outstanding on such day, and (ii) the denominator of which is the
sum of (a) the aggregate principal amount of the First Mortgage Bonds,
Collateral (2004)
10
Series B that are Outstanding on such day, plus
(b) the aggregate principal amount of the First Mortgage Bonds, Collateral
(2004) Series B, due 2011, of the Company (the “
Montana Term Loan Bonds
”)
that are outstanding on such day under the Montana Mortgage. Simultaneously with the issuance and
registration of the First Mortgage Bonds, Collateral (2004) Series B in
the name of the Collateral Agent (for the same purpose), the Montana Term Loan
Bonds will be issued to the Collateral Agent to secure the obligations of the
Company to pay when due a portion of the principal of and interest on the Term
Loans. Initially, the Term Loan
Applicable Share will be 28.00% (being the expression as a percentage (rounded
to the second decimal place) of a fraction, the numerator of which is $28,000,000
(the aggregate principal amount of the First Mortgage Bonds, Collateral (2004) Series B
that are to be issued and become Outstanding) and the denominator of which is $100,000,000
(the sum of $28,000,000, the aggregate principal amount of the First Mortgage
Bonds, Collateral (2004) Series B that are to be issued and become
Outstanding, plus $72,000,000, the aggregate principal amount of the Montana
Term Loan Bonds that are to be issued and become outstanding under the Montana
Mortgage simultaneously with the issuance of the First Mortgage Bonds, Collateral
(2004) Series B). Pursuant to the
Collateral Agreement, the Collateral Agent has agreed to furnish to the Trustee
(with a copy to the Company) as soon as practicable after any change in the
Term Loan Applicable Share, a certificate, signed by a person purporting to be
its duly authorized officer, notifying the Trustee of such change in the Term
Loan Applicable Share (a “
Term Loan Applicable Share Certificate
”). Each Term Loan Applicable Share Certificate
shall set forth (i) the changed Term Loan Applicable Share, (ii) the
date such change occurred, (iii) the aggregate principal amount of the First
Mortgage Bonds, Collateral (2004) Series B then Outstanding, and
(iv) the aggregate principal amount of the Montana Term Loan Bonds then
outstanding under the Montana Mortgage.
The Trustee may conclusively presume that the Term Loan Applicable Share
is 28.00% unless and until the Trustee receives a Term Loan Applicable Share
Certificate. Following receipt by the
Trustee of a Term Loan Applicable Share Certificate, the Trustee may
conclusively presume that the Term Loan Applicable Share is as set forth in
such Term Loan Applicable Share Certificate unless and until the Trustee
receives a subsequent Term Loan Applicable Share Certificate.
First Mortgage Bonds, Collateral (2004) Series B
shall mature on November 1, 2011 (the “
Term Loan Maturity Date
”),
with (i) an installment of the principal of the First Mortgage Bonds,
Collateral (2004) Series B in an amount equal to $70,000 (said amount
representing one quarter of one percent (0.25%) of the original aggregate
principal amount of the First Mortgage Bonds, Collateral (2004) Series B) to
be payable on each March 31, June 30, September 30 and December 31, commencing
March 31, 2005 and continuing through and including September 30, 2010, (ii) an
installment of the principal amount of First Mortgage Bonds, Collateral (2004) Series B
in an amount equal to $6,580,000 (said amount representing twenty-three and
one-half percent (23.5%) of the original aggregate principal amount of the First
Mortgage Bonds, Collateral (2004) Series B) to be payable on December 31,
2010, March 31, 2011 and June 30, 2011, and (iii) the balance of the principal
of the First Mortgage Bonds, Collateral (2004) Series B to be payable on
the Term Loan Maturity Date (in each case,
11
unless an equal installment or balance of principal of
the Term Loans is not due and payable on such day or on the Term Loan Maturity
Date, as applicable, in accordance with the Credit Agreement by reason of prior
prepayment of the Term Loans (in which event, there shall be due and payable on
the First Mortgage Bonds, Collateral (2004) Series B on such day or on the
Term Loan Maturity Date, as applicable, an amount of principal of said Bonds
equal to the Term Loan Applicable Share of the amount of principal of the Term
Loans that is payable on such day or on the Term Loan Maturity Date, as
applicable, in accordance with the Credit Agreement); the unpaid principal amount
of the First Mortgage Bonds, Collateral (2004) Series B 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 Term 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 Term Loans),
payable on each day on which interest is payable on the Term Loans in
accordance with the Credit Agreement (and in an amount equal to the Term Loan
Applicable Share of the amount of interest that is payable on the Term 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; 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.
First Mortgage Bonds, Collateral (2004) Series B shall be dated as
in Section 3.03(c) of the Original Indenture (as supplemented) provided.
As permitted pursuant to Sections 3.01 and 5.06
of the Indenture (as supplemented), scheduled amortization payments with
respect to the First Mortgage Bonds, Collateral (2004) Series B (as
specified for the First Mortgage Bonds, Collateral (2004) Series B prior
to the Term Loan Maturity Date pursuant to the preceding paragraph of this
Section 1) shall not constitute a redemption in part of the First Mortgage
Bonds, Collateral (2004) Series B for purposes of Section 5.06 of the
Indenture (as supplemented) (and, therefore, surrender of the First Mortgage
Bonds, Collateral (2004) Series B shall not be a condition to the receipt
by the registered owners of the First Mortgage Bonds, Collateral (2004) Series B
of such scheduled amortization payments).
SECTION 2. First Mortgage Bonds, Collateral (2004) Series B
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. First Mortgage Bonds,
Collateral (2004) Series B 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 First Mortgage Bonds, Collateral
(2004) Series B of other authorized denominations, for the same aggregate
principal amount, subject to the terms and conditions set forth in the
Indenture.
First Mortgage Bonds, Collateral (2004) Series B
shall not be transferable except to any successor Collateral Agent under the
Collateral Agreement. As a condition
precedent to any transfer of the First Mortgage Bonds, Collateral (2004) Series B
by the Collateral Agent, the Collateral Agent shall submit to the Company, the
Trustee and the
12
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 officer, certifying that the transferee in such
transfer is a successor Collateral Agent under 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).
Any transfer of First Mortgage Bonds, Collateral
(2004) Series B (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 First Mortgage Bonds, Collateral (2004) Series B to a
successor Collateral Agent under the Collateral Agreement, 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 First Mortgage Bonds, Collateral (2004) Series B
by the Collateral Agent, 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 First Mortgage Bonds, Collateral
(2004) Series B by the Collateral Agent).
The Company has appointed JPMorgan Chase Bank as its
agent to receive First Mortgage Bonds, Collateral (2004) Series B
presented or surrendered for payment, to receive First Mortgage Bonds,
Collateral (2004) Series B surrendered for registration of transfer or
exchange and to receive notices and demands to or upon the Company in respect
of the First Mortgage Bonds, Collateral (2004) Series B 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. First Mortgage Bonds, Collateral (2004) Series B
shall be subject to the following redemption and other terms and conditions:
(I) First
Mortgage Bonds, Collateral (2004) Series B shall be 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 Term Loans are prepaid in accordance with the Credit Agreement, First
Mortgage Bonds, Collateral (2004) Series B shall be deemed to have been
redeemed in an aggregate principal amount equal to the Term Loan Applicable
Share of the aggregate principal amount of the Term Loans that are so prepaid
on such day (a “
Term Loan Prepayment Redemption
”); and (B) on each day
on which the Term Loans are accelerated in accordance with the Credit Agreement
(an “
Acceleration Redemption Date
”), the entire aggregate principal
amount of the First Mortgage Bonds, Collateral (2004) Series B shall be
subject to mandatory redemption by the Company (an “
Acceleration Redemption
”);
in each case, without any necessity for notice or call by the Company or by the
Trustee (such notice and call being
13
waived by the registered owners of the First Mortgage
Bonds, Collateral (2004) Series B by the acceptance of the First Mortgage
Bonds, Collateral (2004) Series B and in connection with each Redemption
Demand hereinafter described);
provided
,
however
, that in the
event of a rescission or annulment of an acceleration of the Term Loans
pursuant to the Credit Agreement or otherwise, the related Acceleration
Redemption shall be deemed to be rescinded or annulled (without prejudice to
the occurrence of another Acceleration Redemption upon and by reason of a
subsequent acceleration of the Term Loans in accordance with the Credit
Agreement). Acceleration Redemption of First
Mortgage Bonds, Collateral (2004) Series B on an Acceleration Redemption
Date shall be at a redemption price equal to the principal amount of the First
Mortgage Bonds, Collateral (2004) Series B (without premium), together
with interest accrued on said principal to and including the date of redemption
(collectively, an “
Acceleration Redemption Amount
”); and such Acceleration Redemption Amount shall
be due and payable on the First Mortgage Bonds, Collateral (2004) Series B
on such Acceleration Redemption Date. In
the event of any failure by the Company to pay when due the Acceleration
Redemption Amount with respect to an Acceleration Redemption of First Mortgage
Bonds, Collateral (2004) Series B, interest shall accrue on such unpaid
Acceleration Redemption Amount at the rates (and in amounts equal to the Term
Loan Applicable Share of the amounts) of interest that accrue on the
corresponding unpaid principal of and interest on the Term Loans in accordance
with the Credit Agreement.
The Trustee may conclusively presume that no redemption
of First Mortgage Bonds, Collateral (2004) Series B is deemed to have
occurred (in the case of a Term Loan Prepayment Redemption) or is required (in
the case of an Acceleration Redemption 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 Term Loans have been prepaid or
have been accelerated, in either case, in accordance with the Credit Agreement
(a “
Redemption Demand
”). Each
Redemption Demand also shall state (i) the date on which the Term Loans
were prepaid or accelerated in accordance with the Credit Agreement, (ii) the
principal amount of the Term Loans so prepaid or accelerated on such date, (iii) the
principal amount of First Mortgage Bonds, Collateral (2004) Series B that
are deemed to have been redeemed or are to be redeemed on such date in
accordance with this Supplemental Indenture by reason of such prepayment or
acceleration, and (iv) in the case of an Acceleration Redemption, the
Acceleration Redemption Amount payable with respect to the First Mortgage Bonds,
Collateral (2004) Series B (determined in accordance with this Supplemental
Indenture) and setting forth the amounts of the respective portions thereof
representing principal of and interest on the First Mortgage Bonds, Collateral
(2004) Series B. Each Redemption
Demand shall be deemed to constitute a written waiver by the Collateral Agent,
as registered owner of all First Mortgage Bonds, Collateral (2004) Series B
then Outstanding, of notice of redemption and call for redemption by the
Company or the Trustee of the First Mortgage Bonds, Collateral (2004) Series B
deemed redeemed or subject to redemption as described in such Redemption
Demand. The Trustee may conclusively
presume the statements contained in each Redemption Demand to be correct (and
the Trustee shall be fully protected in relying thereon).
14
The Trustee may conclusively presume that no
rescission or annulment of an Acceleration Redemption (in respect of which the Trustee
has received a Redemption Demand) 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 acceleration of
the Term Loans has been rescinded or annulled in accordance with the Credit
Agreement or otherwise (a “
Rescission Notice
”). Each Rescission Notice also shall state the
date on which the acceleration of the Term Loans was rescinded or annulled in
accordance with the Credit Agreement or otherwise and, as consequence, the
redemption of the First Mortgage Bonds, Collateral (2004) Series B was
rescinded or annulled in accordance with this Supplemental Indenture. The Trustee may conclusively presume the
statements contained in any Rescission Notice to be correct (and the Trustee
shall be fully protected in relying thereon).
Pursuant to (and by reason of the provisions of
Section 10.2 of) the Credit Agreement, the Administrative Agent has agreed to
submit to the Trustee (with copies to the Collateral Agent and the Company) (i) a
Redemption Demand with respect to, and in connection with, each event that
gives rise to a redemption (deemed or actual) of First Mortgage Bonds,
Collateral (2004) Series B, and (ii) a Rescission Notice in
connection with any event that gives rise to the rescission or annulment of an Acceleration
Redemption. Pursuant to the Collateral
Agreement, the Collateral Agent has agreed, upon written request of the Company
and so long as no Default or Event of Default described in Section 8(f) of
the Credit Agreement shall have occurred and be continuing, to surrender or
exchange its First Mortgage Bond, Collateral (2004) Series B or First
Mortgage Bonds, Collateral (2004) Series B, from time to time (including,
without limitation, promptly following each redemption (deemed or actual) of First
Mortgage Bonds, Collateral (2004) Series B), so that at all times the
Collateral Agent is holding one or more First Mortgage Bonds, Collateral (2004)
Series B in an aggregate principal amount equal to, but not in excess of,
the aggregate principal amount of the First Mortgage Bonds, Collateral (2004) Series B
that are then Outstanding (and the Term Loan Applicable Share of the aggregate
principal amount of Term Loans that are then outstanding under the Credit
Agreement).
(II) It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything herein or in any First Mortgage Bonds, Collateral (2004) Series B to
the contrary (other than the provisions of subdivision IV below), each payment
of principal of or interest on the First Mortgage Bonds, Collateral (2004)
Series B 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 Term Loan Applicable Share
of, a payment of principal of or interest on the Term Loans that becomes due
and payable on such day in accordance with the Credit Agreement.
(III) The
obligation of the Company to make each payment of principal of or interest on
the First Mortgage Bonds, Collateral (2004) Series B that becomes due and
payable in accordance with this Supplemental Indenture (A) shall be fully
satisfied and discharged if the corresponding payment of the principal of or
interest on the Term Loans shall have been fully paid under and in accordance
with the Credit Agreement, and
15
(B) shall be partially satisfied and discharged
if the corresponding payment of the principal of or interest on the Term Loans
shall have been partially paid under and in accordance with the Credit
Agreement (such partial satisfaction and discharge with respect to the First
Mortgage Bonds, Collateral (2004) Series B to be in an amount equal to the
Term Loan Applicable Share of the amount of such partial payment with respect
to the Term Loans). The Trustee may
conclusively presume that the obligation of the Company to make payments with
respect to the principal of and interest on the First Mortgage Bonds,
Collateral (2004) Series B 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 of and/or interest on the Term 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 Term 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 First Mortgage
Bonds, Collateral (2004) Series B 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) (and the Trustee shall be fully
protected in relying thereon). Without
limitation of the foregoing, and for the avoidance of any doubt, it is
expressly stated that the Trustee shall not be responsible for (i) the
calculation of interest on the First Mortgage Bonds, Collateral (2004) Series B,
or (ii) the determination of any amount (including, without limitation,
any principal of or interest on the Term Loans) that is payable or paid under
the Credit Agreement.
(IV) Nothing
herein or in any of the First Mortgage Bonds, Collateral (2004) Series B
(including, without limitation, any reference to the principal payable with
respect to the First Mortgage Bonds, Collateral (2004) Series B being
determined on the basis of the Term Loan Applicable Share of the principal
payable with respect to the Term Loans) shall, or shall be deemed or construed
to, (A) increase the aggregate principal amount of the First Mortgage
Bonds, Collateral (2004) Series B that are Outstanding from time to time,
(B) cause or permit an amount of principal of the First Mortgage Bonds,
Collateral (2004) Series B to be or to become due and payable which, when
added to all other principal of such Bonds theretofore paid, exceeds $28,000,000,
or (C) cause or permit to be or to become due and payable interest on the First
Mortgage Bonds, Collateral (2004) Series B which is payable on any
principal of the First Mortgage Bonds, Collateral (2004) Series B that is
in excess of the principal of the First Mortgage Bonds, Collateral (2004) Series B
as restricted pursuant to the preceding clauses (A) and (B).
SECTION 4. The First Mortgage Bonds, Collateral (2004) Series B
and the Trustee’s Certificate of Authentication shall be substantially in the form
attached hereto as
Exhibit B
.
16
ARTICLE III
DESCRIPTION OF FIRST MORTGAGE BONDS, COLLATERAL (2004)
SERIES C
SECTION 1. The Company hereby creates a new series of
Bonds to be known as “First Mortgage Bonds, Collateral (2004) Series C,
due 2014.” The First Mortgage Bonds,
Collateral (2004) Series C 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 First Mortgage Bonds, Collateral (2004) Series C which may be
authenticated and delivered under the Indenture (except for First Mortgage
Bonds, Collateral (2004) Series C authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other First
Mortgage Bonds, Collateral (2004) Series C pursuant to the Indenture and
except for First Mortgage Bonds, Collateral (2004) Series C which,
pursuant to the Indenture, are deemed never to have been authenticated and
delivered under the Indenture) is limited to $64,000,000.
First Mortgage Bonds, Collateral (2004) Series C
shall be issued to and registered in the name of U.S. Bank National Association,
as trustee (together with its successors in such capacity, the “
Senior Note
Trustee
”) under the Indenture, dated as of November 1, 2004, between the
Company and the Senior Note Trustee, as supplemented and amended by
Supplemental Indenture No. 1, dated as of November 1, 2004 (as so supplemented
and amended and as may be further supplemented, amended or otherwise modified
in accordance with its terms, the “
Senior Note Indenture
”), to be owned
and held by the Senior Note Trustee under the terms of the Senior Note
Indenture as security for the payment of the principal of, premium (if any) and
interest on a series of senior secured notes of the Company issued pursuant to
the Senior Note Indenture designated “Senior Secured Notes, 5.875% Series A
due 2014” (the “
Series A Senior Notes
”) and, if and to the extent
issued and delivered in exchange for the Series A Senior Notes subject to
and in accordance with the Senior Note Indenture, a series of senior secured
notes of the Company designated “Senior Secured Notes, 5.875% Exchange Series A
due 2014” (the “
Series A Exchange Notes
”). The Series A Notes and, if and to the
extent issued in exchange for Series A Senior Notes subject to and in
accordance with the Senior Note Indenture, the Series A Exchange Notes are
referred to hereinafter, collectively, as the “
Senior Notes
”. For purposes of the Senior Note Indenture, First
Mortgage Bonds, Collateral (2004) Series C, together with the Montana
Senior Notes Bonds (as such term is hereinafter defined), are “the related or
corresponding First Mortgage Bonds” with respect to the Senior Notes.
As used herein, “
Senior Notes 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 First Mortgage Bonds, Collateral (2004) Series C that are
Outstanding on such day, and (ii) the denominator of which is the sum of
(a) the aggregate principal amount of the First Mortgage Bonds, Collateral
(2004) Series C that are Outstanding on such day, plus (b) the
aggregate principal amount of the First Mortgage Bonds, Collateral (2004) Series C,
due 2014, of the Company (the “
Montana Senior Notes Bonds
”) that are
outstanding on such day under the Montana
17
Mortgage. Simultaneously
with the issuance and registration of the First Mortgage Bonds, Collateral
(2004) Series C in the name of the Senior Note Trustee (for the same purpose),
the Montana Senior Notes Bonds will be issued to and registered in the name of
the Senior Note Trustee, to be owned and held by the Senior Note Trustee under
the terms of the Senior Note Indenture as security for the payment of the
principal of, premium (if any) and interest on the Senior Notes. Initially, the Senior Notes Applicable Share
will be 28.44444444% (being the expression as a percentage (rounded to the eighth
decimal place) of a fraction, the numerator of which is $64,000,000 (the
aggregate principal amount of the First Mortgage Bonds, Collateral (2004) Series C
that are to be issued and become Outstanding) and the denominator of which is $225,000,000
(the sum of $64,000,000, the aggregate principal amount of the First Mortgage
Bonds, Collateral (2004) Series C that are to be issued and become
Outstanding, plus $161,000,000, the aggregate principal amount of the Montana Senior
Notes Bonds that are to be issued and become outstanding under the Montana
Mortgage simultaneously with the issuance of the First Mortgage Bonds,
Collateral (2004) Series C).
Pursuant to the Senior Note Indenture, the Senior Note Trustee has
agreed to furnish to the Trustee (with a copy to the Company) as soon as
practicable after any change in the Senior Notes Applicable Share, a
certificate, signed by a person purporting to be its duly authorized officer,
notifying the Trustee of such change in the Senior Notes Applicable Share (a “
Senior
Notes Applicable Share Certificate
”).
Each Senior Notes Applicable Share Certificate shall set forth
(i) the changed Senior Notes Applicable Share, (ii) the date such
change occurred, (iii) the aggregate principal amount of the First
Mortgage Bonds, Collateral (2004) Series C then Outstanding, and
(iv) the aggregate principal amount of the Montana Senior Notes Bonds then
outstanding under the Montana Mortgage.
The Trustee may conclusively presume that the Senior Notes Applicable
Share is 28.44444444% unless and until the Trustee receives a Senior Notes Applicable
Share Certificate. Following receipt by
the Trustee of a Senior Notes Applicable Share Certificate, the Trustee may
conclusively presume that the Senior Notes Applicable Share is as set forth in
such Senior Notes Applicable Share Certificate unless and until the Trustee
receives a subsequent Senior Notes Applicable Share Certificate (and the
Trustee shall be fully protected in relying thereon).
First Mortgage Bonds, Collateral (2004) Series C shall
mature on November 1, 2014 (the “
Senior Notes Maturity Date
”),
with the unpaid principal of the First Mortgage Bonds, Collateral (2004) Series C
to be due and payable on the Senior Notes Maturity Date; the unpaid principal
amount of the Bonds of the First Mortgage Bonds, Collateral (2004) Series C
shall bear interest at the rate of five and seven eighth percent (5.875%) per
annum (calculated in the same manner as interest is calculated on the Senior
Notes in accordance with the Senior Note Indenture), payable semiannually on
the first (1st) day of each May and November, commencing on May 1, 2005 and
continuing until the principal of the First Mortgage Bonds, Collateral (2004) Series C
is paid (or provided for in accordance with the Senior Note Indenture), to the
Senior Note Trustee as the registered owner, without regard to, or necessity
for, any record date; principal of, premium (if any) 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. First Mortgage Bonds, Collateral
(2004) Series C shall be dated as in Section 3.03(c) of the Original
Indenture (as supplemented) provided.
18
SECTION 2. First Mortgage Bonds, Collateral (2004) Series C
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. First Mortgage Bonds,
Collateral (2004) Series C 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 First Mortgage Bonds, Collateral
(2004) Series C of other authorized denominations, for the same aggregate
principal amount, subject to the terms and conditions set forth in the
Indenture.
First Mortgage Bonds, Collateral (2004) Series C
shall not be transferable except to any successor Senior Note Trustee under the
Senior Note Indenture. As a condition
precedent to any transfer of the First Mortgage Bonds, Collateral (2004) Series C
by the Senior Note Trustee, the Senior Note Trustee 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 Senior Note Trustee, signed by a person
purporting to be its duly authorized officer, certifying that the transferee in
such transfer is a successor Senior Note Trustee under the Senior Note
Indenture (and the Trustee and the Bond Registrar may conclusively presume the
statements in any such certificate of the Senior Note Trustee to be correct and
shall fully be protected in relying thereon).
Any transfer of First Mortgage Bonds, Collateral
(2004) Series C (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 First Mortgage Bonds, Collateral (2004) Series C to a
successor Senior Note Trustee under the Senior Note Indenture (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 First Mortgage Bonds, Collateral (2004) Series C
by the Senior Note Trustee, 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 First Mortgage Bonds, Collateral
(2004) Series C by the Senior Note Trustee to a successor Senior Note
Trustee under the Senior Note Indenture).
The Company has appointed JPMorgan Chase Bank as its
agent to receive First Mortgage Bonds, Collateral (2004) Series C
presented or surrendered for payment, to receive First Mortgage Bonds,
Collateral (2004) Series C surrendered for registration of transfer or
exchange and to receive notices and demands to or upon the Company in respect
of the First Mortgage Bonds, Collateral (2004) Series C 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.
19
SECTION 3. First Mortgage Bonds, Collateral (2004) Series C
shall be subject to the following redemption and other terms and conditions:
(I) First
Mortgage Bonds, Collateral (2004) Series C shall be 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 Senior Notes become due and payable in accordance with Section 405 of
the Senior Note Indenture by reason of redemption in accordance with the Senior
Note Indenture (a “
Senior Notes Redemption Payment Date
”), First
Mortgage Bonds, Collateral (2004) Series C shall be subject to mandatory
redemption by the Company in an aggregate principal amount equal to the Senior
Notes Applicable Share of the aggregate principal amount of the Senior Notes
that become so due and payable on such Senior Notes Redemption Payment Date (a “
Corresponding
Redemption
”); and (B) on each day on which the Senior Notes become due
and payable in accordance with Section 702 of the Senior Note Indenture by
reason of acceleration of the Senior Notes in accordance with the Senior Note
Indenture (a “
Senior Notes Acceleration Payment Date
”), the entire
aggregate principal amount of First Mortgage Bonds, Collateral (2004) Series C
shall be subject to mandatory redemption by the Company (an “
Acceleration
Redemption
”); in each case, without any necessity for notice or call by the
Company or by the Trustee (such notice and call being waived by the registered
owners of First Mortgage Bonds, Collateral (2004) Series C by the
acceptance of First Mortgage Bonds, Collateral (2004) Series C and in
connection with each Redemption Demand hereinafter described);
provided
,
however
, that in the event of a rescission or annulment of an acceleration
of the Senior Notes pursuant to the Senior Note Indenture, the related
Acceleration Redemption shall be deemed to be rescinded or annulled (without
prejudice to the occurrence of another Acceleration Redemption upon and by
reason of a subsequent acceleration of the Senior Notes in accordance with the
Senior Note Indenture).
Each Corresponding Redemption of First Mortgage Bonds,
Collateral (2004) Series C shall be at a redemption price equal to the
redemption price payable in connection with the redemption of Senior Notes to
which it corresponds (consisting of principal of and, if applicable to such
redemption of Senior Notes in accordance with the Senior Note Indenture,
premium on such Senior Notes), together with interest accrued on the principal
included in such redemption price to such Senior Notes Redemption Payment Date
(a “
Corresponding Redemption Amount
”); and such Corresponding Redemption
Amount shall be due and payable on such Senior Notes Redemption Payment
Date. Each Acceleration Redemption of First
Mortgage Bonds, Collateral (2004) Series C on a Senior Notes Acceleration
Payment Date shall be at a redemption price equal to the principal amount of the
First Mortgage Bonds, Collateral (2004) Series C (without premium),
together with interest accrued on said principal to the date of redemption (an “
Acceleration
Redemption Amount
”); and such Acceleration Redemption Amount shall be due
and payable on such Senior Notes Acceleration Payment Date. In the event of any failure by the Company to
pay when due the Corresponding Redemption Amount with respect to a
Corresponding Redemption of First Mortgage Bonds, Collateral (2004)
Series C or the Acceleration Redemption Amount with respect to an
Acceleration Redemption of First Mortgage Bonds, Collateral (2004) Series C,
interest shall accrue on
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such unpaid Corresponding Redemption Amount or such
unpaid Acceleration Redemption Amount at the rates (and in amounts equal to the
Senior Notes Applicable Share of the amounts) of interest that accrue on the
corresponding unpaid principal of, premium (if any) and interest on the Senior
Notes in accordance with the Senior Note Indenture.
The Trustee may conclusively presume that no
redemption of First Mortgage Bonds, Collateral (2004) Series C is required
unless and until it shall have received a written notice from the Senior Note
Trustee, signed by a person purporting to be its duly authorized officer,
stating that Senior Notes became due and payable pursuant to Section 405 or 702
of the Senior Note Indenture by reason of redemption or acceleration in accordance
with the Senior Note Indenture (a “
Redemption Demand
”). Each Redemption Demand also shall state (i) the
date on which Senior Notes became due and payable by reason of redemption or
acceleration in accordance with the Senior Note Indenture, (ii) the principal
amount of the Senior Notes that became so due and payable on such date, (iii)
the principal amount of First Mortgage Bonds, Collateral (2004) Series C to
be redeemed on such date in accordance with this Supplemental Indenture by
reason of such redemption or acceleration, and (iv) the Corresponding
Redemption Amount or the Acceleration Redemption Amount payable on such date with
respect to First Mortgage Bonds, Collateral (2004) Series C (determined in
accordance with this Supplemental Indenture) and setting forth the amounts of
the respective portions thereof representing principal of, premium (if any) and
interest on First Mortgage Bonds, Collateral (2004) Series C. Each Redemption Demand shall be deemed to constitute
a waiver by the Senior Note Trustee, as registered owner of all First Mortgage
Bonds, Collateral (2004) Series C then Outstanding, of notice of
redemption and call for redemption by the Company or the Trustee of First
Mortgage Bonds, Collateral (2004) Series C subject to redemption as
described in such Redemption Demand. The
Trustee may conclusively presume the statements contained in each Redemption
Demand to be correct (and the Trustee shall be fully protected in relying
thereon).
The Trustee may conclusively presume that no rescission
or annulment of an Acceleration Redemption (in respect of which the Trustee has
received a Redemption Demand) is required unless and until it shall have
received a written notice from the Senior Note Trustee, signed by a person
purporting to be its duly authorized officer, stating that the acceleration of
the Senior Notes has been rescinded or annulled in accordance with the Senior
Note Indenture (a “
Rescission Notice
”).
Each Rescission Notice also shall state the date on which the
acceleration of the Senior Notes was rescinded or annulled in accordance with
the Senior Note Indenture and, as consequence, the redemption of First Mortgage
Bonds, Collateral (2004) Series C was rescinded or annulled in accordance
with this Supplemental Indenture. The Trustee
may conclusively presume the statements contained in any Rescission Notice to
be correct (and the Trustee shall be fully protected in relying thereon).
(II) It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything herein or in any First Mortgage Bonds, Collateral (2004) Series C
to the contrary (other than the provisions of subdivision (IV) below), each
payment of principal of, premium (if any) or interest on the First Mortgage
Bonds, Collateral (2004) Series C
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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
Senior Notes Applicable Share of, a payment of principal of, premium (if any)
or interest on the Senior Notes that becomes due and payable on such day in
accordance with the Senior Note Indenture.
(III) The
obligation of the Company to make each payment of principal of, premium (if
any) or interest on the First Mortgage Bonds, Collateral (2004) Series C
that becomes due and payable in accordance with this Supplemental Indenture
(A) shall be fully satisfied and discharged if the corresponding payment
of the principal of, premium (if any) or interest on the Senior Notes shall
have been fully paid, or if provision for the full payment of the Senior Notes
shall have been made (by depositing moneys sufficient for such full payment
with the Senior Note Trustee), in either case under and in accordance with the
Senior Note Indenture, and (B) shall be partially satisfied and discharged
if the corresponding payment of the principal of, premium (if any) or interest
on the Senior Notes shall have been partially paid, or if provision for the
partial payment of the Senior Notes shall have been made (by depositing moneys
sufficient for such partial payment with the Senior Note Trustee), in either
case under and in accordance with the Senior Note Indenture (such partial satisfaction
and discharge with respect to the First Mortgage Bonds, Collateral (2004) Series C
to be in an amount equal to the Senior Notes Applicable Share of the amount of
such partial payment or provision for partial payment with respect to the
Senior Notes). The Trustee may
conclusively presume that the obligation of the Company to make payments with
respect to the principal of, premium (if any) and interest on the First
Mortgage Bonds, Collateral (2004) Series C has been fully satisfied and
discharged unless and until the Trustee shall have received a written notice
from the Senior Note Trustee, 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 of, premium (if any)
and/or interest on the Senior Notes which became due and payable in accordance
with the Senior Note Indenture, (ii) the amount and date of such payment
of principal of, premium (if any) and/or interest on the Senior Notes which the
Company has failed to make in accordance with the Senior Note Indenture, and
(iii) the amount of principal of, premium (if any) and/or interest on the First
Mortgage Bonds, Collateral (2004) Series C 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
Senior Note Trustee to be correct unless and until the Trustee shall receive a
subsequent and/or modified notice from the Senior Note Trustee pursuant to and
in accordance with this subdivision (III) (and the Trustee shall be fully
protected in relying thereon). Without
limitation of the foregoing, and for the avoidance of any doubt, it is
expressly stated that the Trustee shall not be responsible for (i) the
calculation of interest on the First Mortgage Bonds, Collateral (2004) Series C,
or (ii) the determination of any amount (including, without limitation,
any principal of, premium (if any) or interest on the Senior Notes) that is
payable or paid under the Senior Note Indenture.
(IV) Nothing
herein or in any of the First Mortgage Bonds, Collateral (2004) Series C
(including, without limitation, any reference to the principal payable with
respect to the First Mortgage Bonds, Collateral (2004) Series C being
determined on the
22
basis of the Senior Notes Applicable Share of the
principal payable with respect to the Senior Notes) shall, or shall be deemed
or construed to, (A) increase the aggregate principal amount of the First
Mortgage Bonds, Collateral (2004) Series C that are Outstanding from time
to time, (B) cause or permit an amount of principal of the First Mortgage
Bonds, Collateral (2004) Series C to be or to become due and payable
which, when added to all other principal of such Bonds theretofore paid,
exceeds $64,000,000, or (C) cause or permit to be or to become due and
payable interest on the First Mortgage Bonds, Collateral (2004) Series C which
is payable on any principal of the First Mortgage Bonds, Collateral (2004) Series C
that is in excess of the principal of the First Mortgage Bonds, Collateral
(2004) Series C as restricted pursuant to the preceding clauses (A) and
(B).
SECTION 4. The First Mortgage Bonds, Collateral (2004) Series C
and the Trustee’s Certificate of Authentication shall be substantially in the form
attached hereto as
Exhibit C
.
ARTICLE IV
ISSUE OF
FIRST MORTGAGE BONDS, COLLATERAL (2004) SERIES A,
FIRST MORTGAGE BONDS, COLLATERAL (2004) SERIES B,
AND FIRST MORTGAGE BONDS, COLLATERAL (2004) SERIES C
SECTION 1. The Company hereby exercises the right to
obtain the authentication of $110,000,000 principal amount of Bonds pursuant to
the terms of Section 4.04 of the Indenture. Such Bonds shall be $35,000,000 principal
amount of First Mortgage Bonds, Collateral (2004) Series A, $28,000,000
principal amount of First Mortgage Bonds, Collateral (2004) Series B, and $47,000,000
principal amount of First Mortgage Bonds, Collateral (2004) Series C.
SECTION 2. The Company hereby exercises the right to
obtain the authentication of $17,000,000 principal amount of Bonds pursuant to
the terms of Section 4.03 of the Indenture. All such Bonds shall be First Mortgage Bonds,
Collateral (2004) Series C.
SECTION 3. Such First Mortgage Bonds, Collateral (2004) Series A,
First Mortgage Bonds, Collateral (2004) Series B, and First Mortgage Bonds,
Collateral (2004) Series C may be authenticated and delivered prior to the
filing for recordation of this Supplemental Indenture.
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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 First Mortgage Bonds, Collateral (2004) Series A, First
Mortgage Bonds, Collateral (2004) Series B, and First Mortgage Bonds,
Collateral (2004) Series C, 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 First Mortgage Bonds, Collateral (2004) Series A, First
Mortgage Bonds, Collateral (2004) Series B, and First Mortgage Bonds,
Collateral (2004) Series C 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 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.
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SECTION 2. Section 9.01 of the Original Indenture
is amended by adding at the end thereof the following additional paragraph (h):
(h) Anything
herein to the contrary notwithstanding, the Company may not effect a satisfaction
and discharge as described in paragraph (a) of this Section 9.01
unless the Company delivers to the Trustee an Opinion of Counsel to the effect
that the Holders of the affected Bonds (i) will not recognize income, gain
or loss for United States federal income tax purposes as a result of such
satisfaction and discharge, and (ii) will be subject to United States
federal income tax on the same amounts, in the same manner and at the same
times as if such satisfaction and discharge had not occurred.
ARTICLE VI
CONFIRMATION OF LIEN OF INDENTURE
ON CERTAIN PROPERTY
The Company hereby confirms, acknowledges and states
that the property described on
Exhibit D
attached hereto is subject
to the Lien of the Indenture pursuant to Granting Clause Second of the Original
Indenture; and, for the avoidance of any doubt, the Company hereby grants,
bargains, sells, conveys, assigns, transfers, mortgages, pledges, sets over and
confirms to the Trustee, and grants to the Trustee a security interest in, all right,
title and interest of the Company in and to such property, as security for the
payment of the principal of premium, if any, and interest, if any, on all Bonds
issued under the Indenture and Outstanding (as defined in the Indenture), when
payable in accordance with the provisions thereof, and as security for the
performance by the Company of, and compliance by the Company with, the
covenants and conditions of the Indenture, TO HAVE AND TO HOLD all such
property on the same terms as all other property subject to the Lien of the
Indenture.
ARTICLE VII
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.
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ARTICLE VIII
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]
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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 Trust Officers; all as of the 1st day of November, 2004.
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NORTHWESTERN CORPORATION
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By
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/s/ Brian B. Bird
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Brian B. Bird
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(CORPORATE SEAL)
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ATTEST:
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/s/
Thomas J. Knapp
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Thomas
J. Knapp
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JPMORGAN CHASE BANK
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By
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/s/ L. O’Brien
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Vice President
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(CORPORATE SEAL)
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ATTEST:
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/s/ Rosa Cioccia
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Trust Officer
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STATE OF NEW YORK
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)
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COUNTY OF NEW YORK
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)
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BE IT REMEMBERED, that on this 1st day of November,
2004, before me, Keith M. Wixson, a Notary Public within and for the County and
State aforesaid, personally came Brian B. Bird, Vice President and Chief
Financial Officer and an Authorized Executive Officer (as such term is defined
in the Indenture referred to in the foregoing Supplemental Indenture) and Thomas
J. Knapp, Vice President and Deputy General Counsel 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.
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/s/ Keith M Wixson
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Notary
Public, State of New York
Qualified in New York County
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Commission expires
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July 14, 2007
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(NOTARIAL SEAL)
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STATE OF NEW YORK
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)
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COUNTY OF NEW YORK
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)
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BE IT REMEMBERED, that on this 1st day of November,
2004, before me, Emily Fayan, a Notary Public within and for the County and
State aforesaid, personally came L. O’Brien, a Vice President, and Rosa Ciaccia,
a Trust Officer, 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.
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/s/ Emily Fayan
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Emily Fayan
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Notary
Public, State of New York
Qualified in New York County
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Commission expires
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Dec. 31, 2005
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(NOTARIAL SEAL)
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Exhibit A
to
Supplemental Indenture
Form of Bond of the First Mortgage Bonds, Collateral
(2004) Series A
[FORM OF BOND OF FIRST
MORTGAGE BONDS, COLLATERAL (2004) SERIES A, DUE 2009]
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR COLLATERAL
AGENT UNDER THE COLLATERAL AGREEMENT (AS IDENTIFIED AND DEFINED BELOW).
NORTHWESTERN CORPORATION
(Incorporated under the laws of the State of Delaware)
FIRST MORTGAGE BOND, COLLATERAL (2004) SERIES A, DUE 2009
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 Lehman
Commercial Paper Inc., as collateral agent under the Bond Delivery and Collateral
Agreement to which reference is hereinafter made, or (subject to the transfer
restrictions hereinbefore and hereinafter described) registered assigns, the
sum of
dollars, or, if less, the unpaid principal amount of the Revolving Loans (as
hereinafter defined), on the first day of November, 2009 (the “
Revolving
Credit Maturity Date
”), 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 Lehman Commercial Paper Inc., as collateral agent (together with
its successors in such capacity, the “
Collateral Agent
”) under the Bond
Delivery and 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 Revolving Credit Applicable
Share (as hereinafter defined) of the Revolving Credit Obligations (as
hereinafter defined) under the Credit 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 “
Credit
Agreement
”), among the Company, as borrower, the several lenders from time
to time parties thereto (the “
Lenders
”), Lehman Brothers Inc. and
Deutsche Bank Securities Inc., as joint lead arrangers and joint bookrunners,
Deutsche Bank Securities Inc., as syndication agent, Union Bank of California,
N.A. and KeyBank National Association, as co-documentation agents, Lehman
Commercial Paper Inc., as administrative agent (together with its successors in
such capacity, the “
Administrative Agent
”) and the Collateral 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.
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Dated:
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NORTHWESTERN
CORPORATION
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By
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Authorized Executive Officer
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ATTEST:
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By
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Authorized Executive Officer
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[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 November 1, 2004.
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JPMORGAN
CHASE BANK, AS TRUSTEE
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By
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Authorized Officer
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A-1
[FORM OF REVERSE OF BOND]
Indenture and Series Designation
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 “First Mortgage Bonds, Collateral (2004) Series A,
due 2009” (the “
First Mortgage Bonds, Collateral (2004) Series A
”)
of the Company issued under and secured by the Indenture and described in the
supplemental indenture dated as of November 1, 2004 (the “
Supplemental
Indenture
”) between the Company and the Trustee, supplemental to the
Indenture.
Issuance to Collateral Agent under Collateral
Agreement
First Mortgage Bonds, Collateral (2004) Series A have
been issued to the Collateral Agent under the Collateral Agreement to secure
the obligations of the Company to pay when due the Revolving Credit Applicable
Share (as hereinafter defined) of the Revolving Credit Obligations under the
Credit Agreement. Each of the Collateral
Agreement and the Credit Agreement is dated as of November 1, 2004.
Principal
The unpaid principal of the First Mortgage Bonds,
Collateral (2004) Series A, of which this Bond is one, is scheduled to be
paid on the Revolving Credit Maturity Date.
From time to time after the issuance of the First Mortgage Bonds,
Collateral (2004) Series A, and as Revolving Loans (as hereinafter
defined) are prepaid and reborrowed subject to and in accordance with the
Credit Agreement, (A) for purposes of determining the amount of principal
payable by the Company with respect to the First Mortgage Bonds, Collateral
(2004) Series A, the unpaid principal amount of the First Mortgage Bonds,
Collateral (2004) Series A at any time shall be deemed to be equal to the Revolving
Credit Applicable Share of the unpaid principal amount of the Revolving Loans
at such time, plus, if an acceleration of the Revolving Loans shall be in
effect in accordance with the Credit Agreement at such time, the amount of cash
collateral required to be provided by the Company pursuant to Section 8 of the
Credit Agreement in respect of Letters of Credit, and (B) for all other
purposes of the Indenture (including
A-2
without limitation, the determination of the amount of
principal on which interest is payable and the determination of the principal
amount with respect to which the Collateral Agent, as registered owner, is
entitled to vote or otherwise exercise rights as registered owner), the First
Mortgage Bonds, Collateral (2004) Series A shall be deemed to be “Outstanding”
at any time in an aggregate principal amount equal to the Maximum Principal
Amount at such time. The “
Maximum
Principal Amount
” on and as of the date of original issuance of the First
Mortgage Bonds, Collateral (2004) Series A shall be $35,000,000 and
thereafter shall be reduced from time to time upon each Revolving Credit
Commitment Redemption and each Revolving Credit Event of Default Termination Commitment
Redemption (as hereinafter defined), in each case, by an amount equal to the
aggregate principal amount of the First Mortgage Bonds, Collateral (2004) Series A
that are deemed to be redeemed pursuant to such Revolving Credit Commitment
Redemption or such Revolving Credit Event of Default Commitment Termination Redemption.
Interest
The unpaid principal amount of the First Mortgage
Bonds, Collateral (2004) Series A, of which this bond is one, bears interest
(i) with respect to the portion or amount of such principal that is equal to
the principal amount of Revolving Loans, 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 Revolving 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 Revolving Loans), payable on each day on which
interest is payable on Revolving Loans in accordance with the Credit Agreement
(and in an amount equal to the Revolving Credit Applicable Share of the amount
of interest that is payable on Revolving Loans on such day in accordance with
the Credit Agreement), (ii) with respect to the portion or amount of such
principal (in excess of the amount described in the preceding clause (i)) that
is equal to the Revolving Credit Applicable Share of the unused Total Revolving
Credit Commitments (as defined in the Credit Agreement), at one or more
variable interest rates per annum which rate or rates for any day shall be
equal to the rate or rates per annum at which commitment fees are payable under
the Credit Agreement on the unused Total Revolving Credit Commitments, payable
on each day on which commitment fees are payable under the Credit Agreement
(and in an amount equal to the Revolving Credit Applicable Share of the amount
of commitment fees that is payable under the Credit Agreement on such day), and
(iii) with respect to the portion or amount of such principal (in excess of the
amounts described in the preceding clauses (i) and (ii)) that is equal to the
Revolving Credit Applicable Share of the amount available to be drawn under
Letters of Credit (as defined in the Credit Agreement), 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 at which letter of credit fees are payable under the
Credit Agreement on the amount available to be drawn under Letters of Credit,
payable on each day on which letter of credit fees are payable under the Credit
Agreement (and in an amount equal to the Revolving Credit Applicable Share of
the amount of letter of credit fees that is payable under the Credit Agreement
on such day), in each case, to the Collateral Agent, as the registered owner,
without regard to, or necessity for, any record date.
A-3
Revolving Credit Applicable Share
As used herein, “
Revolving Credit Applicable Share
”
means, as of any day, a fraction (expressed as a percentage rounded to the
second decimal place), (i) the numerator of which is the aggregate
principal amount of the First Mortgage Bonds, Collateral (2004) Series A
that are Outstanding on such day, and (ii) the denominator of which is the
sum of (a) the aggregate principal amount of the First Mortgage Bonds,
Collateral (2004) Series A that are Outstanding on such day, plus
(b) the aggregate principal amount of the First Mortgage Bonds, Collateral
(2004) Series A, due 2009, of the Company (the “
Montana Revolving
Credit Bonds
”) that are outstanding on such day under the Company’s Montana
Mortgage (as defined in the Supplemental Indenture). Simultaneously with the issuance
and registration of the First Mortgage Bonds, Collateral (2004) Series A in
the name of the Collateral Agent (for the same purpose), the Montana Revolving
Credit Bonds were issued to the Collateral Agent to secure the Revolving Credit
Obligations.
Revolving Credit Obligations and Revolving Loans
As used herein, “
Revolving Credit Obligations
”
means the obligations of the Company (A) to pay (i) principal of and interest
on (a) the Revolving Credit Loans (as defined in the Credit Agreement), (b) the
Swing Line Loans (as defined in the Credit Agreement), and (c) drawings under
Letters of Credit (as defined in the Credit Agreement) that are not reimbursed
pursuant to and in accordance with the Credit Agreement (collectively, “
Revolving
Loans
”), (ii) commitment fees on the average daily amount of the unused
Total Revolving Credit Commitments (as defined in the Credit Agreement); and
(iii) letter of credit fees on the amount available to be drawn under Letters
of Credit (as defined in the Credit Agreement), and (B) to cash collateralize
Letters of Credit pursuant to and in accordance with Section 8 of the Credit
Agreement.
Redemption
First Mortgage Bonds, Collateral (2004) Series A,
of which this bond is one, shall be 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 there is a permanent reduction or termination
of the Revolving Credit Commitments (as defined in the Credit Agreement)
pursuant to Section 2.10 of the Credit Agreement, First Mortgage Bonds,
Collateral (2004) Series A shall be deemed to have been redeemed in an
aggregate principal amount equal to the Revolving Credit Applicable Share of
the amount of such permanent reduction or termination of the Revolving Credit
Commitments pursuant to such Section 2.10 (a “
Revolving Credit Commitment
Redemption
”); (B) on each day on which the Revolving Credit Commitments
are permanently terminated pursuant to Section 8 of the Credit Agreement, First
Mortgage Bonds, Collateral (2004) Series A shall be deemed to have been
redeemed in an aggregate principal amount which, after giving effect to such
termination, results in the Maximum Principal Amount of First Mortgage Bonds,
Collateral (2004) Series A being equal to the Revolving Credit Applicable
Share of the sum of the principal amount of the
A-4
Revolving Loans then outstanding under the Credit
Agreement and the amount then available to be drawn under Letters of Credit (a “
Revolving
Credit Event of Default Commitment Termination Redemption
”); and (C) on
each day on which the Revolving Loans are accelerated in accordance with the
Credit Agreement (an “
Acceleration Redemption Date
”), the entire
aggregate principal amount of First Mortgage Bonds, Collateral (2004)
Series A shall be subject to mandatory redemption by the Company (an “
Acceleration
Redemption
”); in each case, without any necessity for notice or call by the
Company or by the Trustee (such notice and call being waived by the registered
owners of the First Mortgage Bonds, Collateral (2004) Series A by the
acceptance of the First Mortgage Bonds, Collateral (2004) Series A and in
connection with each Redemption Demand hereinafter described);
provided
,
however
, that in the event of a reinstatement of the Revolving Credit
Commitments or a rescission or annulment of the acceleration of the Revolving
Loans pursuant to the Credit Agreement or otherwise, the related Revolving
Credit Event of Default Commitment Termination Redemption or the related
Acceleration Redemption shall be deemed to be rescinded or annulled, without
prejudice to the occurrence of another Revolving Credit Event of Default
Commitment Termination Redemption or another Acceleration Redemption upon and
by reason of a subsequent termination of the Revolving Credit Commitments
pursuant to Section 8 of the Credit Agreement or another acceleration of the Revolving
Loans in accordance with the Credit Agreement.
Acceleration Redemption of First Mortgage Bonds, Collateral (2004)
Series A on an Acceleration Redemption Date shall be at a redemption price
equal to the principal amount (determined in accordance with the Supplemental
Indenture) of the First Mortgage Bonds, Collateral (2004) Series A that is then
payable by the Company (without premium), together with interest accrued on
said principal to and including such Acceleration Redemption Date (collectively,
an “
Acceleration Redemption Amount
”); and such Acceleration Redemption
Amount shall be due and payable on such Acceleration Redemption Date. In the event of any failure by the Company to
pay when due an Acceleration Redemption Amount, interest shall accrue on such
unpaid Acceleration Redemption Amount at the rates (and in amounts equal to the
Revolving Credit Applicable Share of the amounts) of interest that accrue on
the corresponding unpaid principal of and interest on the Revolving Loans in
accordance with the Credit Agreement.
The Trustee may conclusively presume that no
redemption of First Mortgage Bonds, Collateral (2004) Series A is deemed to
have occurred or resulted in a reduction of the Maximum Principal Amount (in
the case of a Revolving Credit Commitment Redemption or a Revolving Credit
Event of Default Commitment Termination Redemption) or is required to occur (in
the case of an Acceleration Redemption) 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 Revolving Credit
Commitments have been permanently reduced or terminated pursuant to Section
2.10 of the Credit Agreement or the Revolving Credit Commitments have been
permanently terminated pursuant to Section 8 of the Credit Agreement or the
Revolving Loans have been accelerated in accordance with the Credit Agreement
(a “
Redemption Demand
”). Each
Redemption Demand also shall (i) state the date on which the Revolving Credit Commitments
were permanently reduced or terminated pursuant to Section 2.10 of the
A-5
Credit Agreement or the Revolving Credit Commitments
were permanently terminated pursuant to Section 8 of the Credit Agreement or
the Revolving Loans were accelerated, (ii) the amount by which the Revolving
Credit Commitments were so permanently reduced or terminated and the Maximum
Principal Amount (determined in accordance with the Supplemental Indenture)
after giving effect to the related and deemed redemption of First Mortgage
Bonds, Collateral (2004) Series A or the principal amount of the Revolving
Loans subject to acceleration on such date, (iii) the principal amount of First
Mortgage Bonds, Collateral (2004) Series A that are deemed to have been
redeemed or are to be redeemed on such date in accordance with the Supplemental
Indenture by reason of such permanent reduction or termination of the Revolving
Credit Commitments and such reduction of the Maximum Principal Amount or such
acceleration of the Revolving Loans, and (iv) in the case of an Acceleration
Redemption, the Acceleration Redemption Amount payable with respect to the First
Mortgage Bonds, Collateral (2004) Series A (determined in accordance with the
Supplemental Indenture) and setting forth the amounts of the respective
portions thereof representing principal of and interest on the First Mortgage
Bonds, Collateral (2004) Series A. Each
Redemption Demand shall be deemed to constitute a written waiver by the Collateral
Agent, as registered owner of all First Mortgage Bonds, Collateral (2004)
Series A then Outstanding, of notice of redemption and call for redemption by
the Company or the Trustee of the First Mortgage Bonds, Collateral (2004)
Series A subject to redemption as described in such Redemption Demand. The Trustee may conclusively presume the
statements contained in each Redemption Demand to be correct (and the Trustee
shall be fully protected in relying thereon).
The Trustee may conclusively presume that no
rescission or annulment of a Revolving Credit Event of Default Commitment Termination
Redemption or an Acceleration Redemption (in respect of which the Trustee has
received a Redemption Demand) 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 termination of
the Revolving Credit Commitments pursuant to Section 8 of the Credit Agreement
or the acceleration of the Revolving Loans has been rescinded or annulled in
accordance with the Credit Agreement or otherwise (a “
Rescission Notice
”). Each Rescission Notice also shall state the
date on which the termination of the Revolving Credit Commitments pursuant to
Section 8 of the Credit Agreement or the acceleration of the Revolving Loans
was rescinded or annulled in accordance with the Credit Agreement or otherwise
and, as consequence, the redemption of the First Mortgage Bonds, Collateral
(2004) Series A was rescinded or annulled in accordance with the Supplemental
Indenture. The Trustee may conclusively
presume the statements contained in any Rescission Notice to be correct (and
the Trustee shall be fully protected in relying thereon).
A-6
Additional Terms
First Mortgage Bonds, Collateral (2004) Series A,
of which this Bond is one, shall be subject to the following other terms and
conditions:
(I) It
is expressly stated (for the avoidance of any doubt) that, notwithstanding anything
in this bond or in the Supplemental Indenture to the contrary (other than the
provisions of subdivision III below), each payment of principal of or interest
on the First Mortgage Bonds, Collateral (2004) Series A 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 Revolving
Credit Applicable Share of, a payment of Revolving Credit Obligations that
becomes due and payable on such day in accordance with the Credit Agreement.
(II) The
obligation of the Company to make each payment of principal of or interest on
the First Mortgage Bonds, Collateral (2004) Series A that becomes due and
payable in accordance with the Supplemental Indenture (A) shall be fully
satisfied and discharged if the corresponding payment of the Revolving Credit
Obligations shall have been fully paid under and in accordance with the Credit
Agreement, and (B) shall be partially satisfied and discharged if the
corresponding payment of the Revolving Credit Obligations shall have been
partially paid under and in accordance with the Credit Agreement (such partial
satisfaction and discharge with respect to the First Mortgage Bonds, Collateral
(2004) Series A to be in an amount equal to the Revolving Credit Applicable
Share of the amount of such partial payment with respect to the Revolving
Credit Obligations).
(III) Nothing
in any of the First Mortgage Bonds, Collateral (2004) Series A (including,
without limitation, any reference to the principal payable with respect to the
First Mortgage Bonds, Collateral (2004) Series A being determined on the basis
of the Revolving Credit Applicable Share of the principal payable with respect
to the Revolving Credit Obligations) shall, or shall be deemed or construed to,
increase the aggregate principal amount of the First Mortgage Bonds, Collateral
(2004) Series A that are Outstanding at any time to an amount in excess of the
Maximum Principal Amount as in effect at such time.
Transfer Restrictions
First Mortgage Bonds, Collateral (2004) Series A,
of which this Bond is one, shall not be transferable except to any successor
Collateral Agent under the Collateral Agreement. As a condition precedent to any transfer of
the First Mortgage Bonds, Collateral (2004) Series A 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
officer, certifying that the transferee in such transfer is a successor
Collateral Agent under 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).
A-7
Any transfer of First Mortgage Bonds, Collateral
(2004) Series A (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 First Mortgage Bonds, Collateral (2004) Series A to a
successor Collateral Agent under the Collateral Agreement, 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 First Mortgage Bonds, Collateral (2004) Series A
by the Collateral Agent, 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 First Mortgage Bonds, Collateral
(2004) Series A by the Collateral Agent).
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 First Mortgage Bonds, Collateral (2004) Series A 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.
A-8
Exhibit B
to
Supplemental Indenture
Form of Bond of the First Mortgage Bonds, Collateral
(2004) Series B
Exhibit B
[FORM OF BOND OF FIRST MORTGAGE BONDS, COLLATERAL
(2004) SERIES B, DUE 2011]
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR COLLATERAL
AGENT UNDER THE COLLATERAL AGREEMENT (AS IDENTIFIED AND DEFINED BELOW).
NORTHWESTERN CORPORATION
(Incorporated under the laws of the State of Delaware)
FIRST MORTGAGE BOND, COLLATERAL (2004) SERIES B, DUE 2011
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 Lehman
Commercial Paper Inc., as collateral agent under the Bond Delivery and
Collateral Agreement to which reference is hereinafter made, or (subject to the
transfer restrictions hereinbefore and hereinafter described) registered
assigns, the sum of
dollars, in installments prior to, and the balance on, the first day of
November, 2011 (the “
Term Loan 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 Lehman Commercial Paper Inc., as collateral agent (together with
its successors in such capacity, the “
Collateral Agent
”) under the Bond
Delivery and 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 Term Loan Applicable Share (as
hereinafter defined) of the principal of and interest on the term loans (the “
Term
Loans
”) made and outstanding under the Credit 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 “
Credit Agreement
”), among the Company, as borrower, the
several lenders from time to time parties thereto (the “
Lenders
”),
Lehman Brothers Inc. and Deutsche Bank Securities Inc., as joint lead arrangers
and joint bookrunners, Deutsche Bank Securities Inc., as syndication agent,
Union Bank of California, N.A. and KeyBank National Association, as
co-documentation agents, Lehman Commercial Paper Inc., as administrative agent
(together with its successors in such capacity, the “
Administrative Agent
”)
and the Collateral 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.
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Dated:
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NORTHWESTERN
CORPORATION
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By
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Authorized Executive Officer
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ATTEST:
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By
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Authorized Executive Officer
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[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 November 1, 2004.
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JPMORGAN
CHASE BANK, AS TRUSTEE
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By
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Authorized Officer
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B-1
[FORM OF REVERSE OF BOND]
Indenture and Series Designation
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 “First Mortgage Bonds, Collateral (2004) Series B,
due 2011” (the “
First Mortgage Bonds, Collateral (2004) Series B
”)
of the Company issued under and secured by the Indenture and described in the
supplemental indenture dated as of November 1, 2004 (the “
Supplemental
Indenture
”) between the Company and the Trustee, supplemental to the
Indenture.
Issuance to Collateral Agent under Collateral
Agreement
The First Mortgage Bonds, Collateral (2004) Series B
have been issued to the Collateral Agent under the Collateral Agreement to
secure the obligations of the Company to pay when due the Term Loan Applicable
Share (as hereinafter defined) of the principal of and interest on the Term Loans
made and outstanding under the Credit Agreement. Each of the Collateral Agreement and the
Credit Agreement is dated as of November 1, 2004.
Principal
Principal of the First Mortgage Bonds, Collateral
(2004) Series B, of which this Bond is one, is scheduled to be paid as
follows: (i) an installment of the principal of the First
Mortgage Bonds, Collateral (2004) Series B in an amount equal to $70,000
(said amount representing one quarter of one percent (0.25%) of the original
aggregate principal amount of the First Mortgage Bonds, Collateral (2004)
Series B) to be payable on each March 31, June 30,
September 30 and December 31, commencing March 31, 2005 and
continuing through and including September 30, 2010, (ii) an
installment of the principal amount of the First Mortgage Bonds, Collateral
(2004) Series B in an amount equal to $6,580,000 (said amount representing
twenty-three and one-half percent (23.5%) of the original aggregate principal
amount of the First Mortgage Bonds, Collateral (2004)
B-2
Series B) to be payable on
December 31, 2010, March 31, 2011 and June 30, 2011, and
(iii) the balance of the principal of the First Mortgage Bonds, Collateral
(2004) Series B to be payable on the Term Loan Maturity Date; in each
case, unless an equal installment or balance of the principal of the Term Loans
is not due and payable on such day or on the Term Loan Maturity Date, as
applicable, in accordance with the Credit Agreement by reason of prior
prepayment of the Term Loans (in which event, there shall be due and payable on
the First Mortgage Bonds, Collateral (2004) Series B on such day or on the
Term Loan Maturity Date, as applicable, an amount of principal of said Bonds
equal to the Term Loan Applicable Share of the amount of principal of the Term
Loans that is payable on such day or on the Term Loan Maturity Date, as
applicable, in accordance with the Credit Agreement).
Interest
The unpaid principal amount of the First Mortgage
Bonds, Collateral (2004) Series B, 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 Term
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
Term Loans), payable on each day on which interest is payable on the Term Loans
in accordance with the Credit Agreement (and in an amount equal to the Term
Loan Applicable Share of the amount of interest that is payable on the Term
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.
Term Loan Applicable Share
As used herein, “
Term Loan Applicable Share
”
means, as of any day, a fraction (expressed as a percentage rounded to the
second decimal place), (i) the numerator of which is the aggregate
principal amount of the First Mortgage Bonds, Collateral (2004) Series B
that are Outstanding on such day, and (ii) the denominator of which is the
sum of (a) the aggregate principal amount of the First Mortgage Bonds,
Collateral (2004) Series B that are Outstanding on such day, plus
(b) the aggregate principal amount of the First Mortgage Bonds, Collateral
(2004) Series B, due 2011, of the Company (the “
Montana Term Loan Bonds
”)
that are outstanding on such day under the Montana Mortgage. Simultaneously with the issuance and
registration of the First Mortgage Bonds, Collateral (2004) Series B in
the name of the Collateral Agent (for the same purpose), the Montana Term Loan
Bonds were issued to the Collateral Agent to secure the obligations of the
Company to pay when due a portion of the principal of and interest on the Term
Loans.
Redemption
First Mortgage Bonds, Collateral (2004) Series B,
of which this Bond is one, shall be subject to redemption as follows (but shall
not otherwise be or become subject to
B-3
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 Term Loans are
prepaid in accordance with the Credit Agreement, First Mortgage Bonds,
Collateral (2004) Series B shall be deemed to have been redeemed in an
aggregate principal amount equal to the Term Loan Applicable Share of the
aggregate principal amount of the Term Loans that are so prepaid on such day (a
“
Term Loan Prepayment Redemption
”); and (B) on each day on which
the Term Loans are accelerated in accordance with the Credit Agreement (an “
Acceleration
Redemption Date
”), the entire aggregate principal amount of the First
Mortgage Bonds, Collateral (2004) Series B shall be subject to mandatory
redemption by the Company (the “
Acceleration Redemption
”); in each case,
without any necessity for notice or call by the Company or by the Trustee (such
notice and call being waived by the registered owners of the First Mortgage
Bonds, Collateral (2004) Series B by the acceptance of the First Mortgage
Bonds, Collateral (2004) Series B and in connection with each Redemption
Demand hereinafter described);
provided
,
however
, that in the event of a rescission or annulment of
the acceleration of the Term Loans pursuant to the Credit Agreement or
otherwise, the related Acceleration Redemption shall be deemed to be rescinded
or annulled (without prejudice to the occurrence of another Acceleration
Redemption upon and by reason of a subsequent acceleration of the Term Loans in
accordance with the Credit Agreement).
Acceleration Redemption of First Mortgage Bonds, Collateral (2004)
Series B on an Acceleration Redemption Date shall be at a redemption price
equal to the principal amount of the First Mortgage Bonds, Collateral (2004)
Series B (without premium), together with interest accrued on said principal to
and including such Acceleration Redemption Date (collectively, an “
Acceleration
Redemption Amount
”); and such Acceleration Redemption Amount shall be due
and payable on the First Mortgage Bonds, Collateral (2004) Series B on such
Acceleration Redemption Date. In the
event of any failure by the Company to pay when due the Acceleration Redemption
Amount with respect to an Acceleration Redemption of First Mortgage Bonds,
Collateral (2004) Series B, interest shall accrue on such unpaid Acceleration
Redemption Amount at the rates (and in amounts equal to the Term Loan
Applicable Share of the amounts) of interest that accrue on the corresponding
unpaid principal of and interest on the Term Loans in accordance with the
Credit Agreement.
The Trustee may conclusively presume that no
redemption of First Mortgage Bonds, Collateral (2004) Series B is deemed to
have occurred (in the case of a Term Loan Prepayment Redemption) or is required
(in the case of an Acceleration Redemption) 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 Term Loans have been
prepaid or have been accelerated, in either case, in accordance with the Credit
Agreement (a “
Redemption Demand
”).
Each Redemption Demand also shall state (i) the date on which the
Term Loans were prepaid or accelerated in accordance with the Credit Agreement,
(ii) the principal amount of the Term Loans so prepaid or accelerated on
such date, (iii) the principal amount of First Mortgage Bonds, Collateral
(2004) Series B that are deemed to have been redeemed or are to be redeemed
B-4
on such date in accordance with the Supplemental
Indenture by reason of such prepayment or acceleration, and (iv) in the
case of an Acceleration Redemption, the Acceleration Redemption Amount payable
with respect to the First Mortgage Bonds, Collateral (2004) Series B
(determined in accordance with the Supplemental Indenture) and setting forth
the amounts of the respective portions thereof representing principal of and
interest on the First Mortgage Bonds, Collateral (2004) Series B. Each Redemption Demand shall be deemed to
constitute a written waiver by the Collateral Agent, as registered owner of all
First Mortgage Bonds, Collateral (2004) Series B then Outstanding, of notice of
redemption and call for redemption by the Company or the Trustee of the First
Mortgage Bonds, Collateral (2004) Series B deemed redeemed or subject to
redemption as described in such Redemption Demand. The Trustee may conclusively presume the
statements contained in each Redemption Demand to be correct (and the Trustee
shall be fully protected in relying thereon).
The Trustee may conclusively presume that no
rescission or annulment of the Acceleration Redemption (in respect of which the
Trustee has received a Redemption Demand) 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
acceleration of the Term Loans has been rescinded or annulled in accordance
with the Credit Agreement or otherwise (a “
Rescission Notice
”). Each Rescission Notice also shall state the
date on which the acceleration of the Term Loans was rescinded or annulled in
accordance with the Credit Agreement or otherwise and, as consequence, the redemption
of the First Mortgage Bonds, Collateral (2004) Series B was rescinded or annulled
in accordance with the Supplemental Indenture.
The Trustee may conclusively presume the statements contained in any
Rescission Notice to be correct (and the Trustee shall be fully protected in
relying thereon).
Additional Terms
First Mortgage Bonds, Collateral (2004) Series B,
of which this Bond is one, shall be subject to the following other terms and
conditions:
(I) It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything in this bond or the Supplemental Indenture to the contrary (other than
the provisions of subdivision III below), each payment of principal of or
interest on the First Mortgage Bonds, Collateral (2004) Series B 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 Term Loan Applicable Share of, a payment of principal of or interest on the
Term Loans that becomes due and payable on such day in accordance with the
Credit Agreement.
(II) The
obligation of the Company to make each payment of principal of or interest on the
First Mortgage Bonds, Collateral (2004) Series B that becomes due and
payable in accordance with the Supplemental Indenture (A) shall be fully
satisfied and discharged if the corresponding payment of the principal of or
interest on the Term Loans
B-5
shall have been fully paid under and in accordance
with the Credit Agreement, and (B) shall be partially satisfied and
discharged if the corresponding payment of the principal of or interest on the
Term Loans shall have been partially paid under and in accordance with the
Credit Agreement (such partial satisfaction and discharge with respect to the First
Mortgage Bonds, Collateral (2004) Series B to be in an amount equal to the
Term Loan Applicable Share of the amount of such partial payment with respect
to the Term Loans).
(III) Nothing
in any of First Mortgage Bonds, Collateral (2004) Series B (including,
without limitation, any reference to the principal payable with respect to the First
Mortgage Bonds, Collateral (2004) Series B being determined on the basis
of the Term Loan Applicable Share of the principal payable with respect to the Term
Loans) shall, or shall be deemed or construed to, (A) increase the
aggregate principal amount of the First Mortgage Bonds, Collateral (2004) Series B
that are Outstanding from time to time, (B) cause or permit an amount of
principal of the First Mortgage Bonds, Collateral (2004) Series B to be or
to become due and payable which, when added to all other principal of such
Bonds theretofore paid, exceeds $28,000,000, or (C) cause or permit to be
or to become due and payable interest on the First Mortgage Bonds, Collateral
(2004) Series B which is payable on any principal of the First Mortgage
Bonds, Collateral (2004) Series B that is in excess of the principal of the
First Mortgage Bonds, Collateral (2004) Series B as restricted pursuant to
the preceding clauses (A) and (B).
Transfer Restrictions
First Mortgage Bonds, Collateral (2004) Series B,
of which this Bond is one, shall not be transferable except to any successor
Collateral Agent under the Collateral Agreement. As a condition precedent to any transfer of
the First Mortgage Bonds, Collateral (2004) Series B 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
officer, certifying that the transferee in such transfer is a successor
Collateral Agent under 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).
Any transfer of First Mortgage Bonds, Collateral
(2004) Series B (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 First Mortgage Bonds, Collateral (2004) Series B to a
successor Collateral Agent under the Collateral Agreement, 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 First Mortgage Bonds, Collateral (2004) Series B
by the Collateral Agent, whether to reimburse itself for any tax or taxes or
other governmental charge or otherwise
B-6
(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 First Mortgage Bonds, Collateral (2004) Series B
by the Collateral Agent).
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 First Mortgage Bonds,
Collateral (2004) Series B 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.
B-7
Exhibit C
to
Supplemental Indenture
Form of Bond of the First Mortgage Bonds, Collateral
(2004) Series C
Exhibit C
[FORM OF BOND OF FIRST MORTGAGE BONDS, COLLATERAL
(2004) SERIES C, DUE 2014]
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR
TRUSTEE
UNDER THE SENIOR NOTE INDENTURE (AS IDENTIFIED AND DEFINED BELOW).
NORTHWESTERN CORPORATION
(Incorporated under the laws of the State of Delaware)
FIRST MORTGAGE BOND, COLLATERAL (2004) SERIES C, DUE 2014
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 U.S.
Bank National Association, as trustee under the Senior Note Indenture to which
reference is hereinafter made, or (subject to the transfer restrictions
hereinbefore and hereinafter described) registered assigns, the sum of
dollars, on the first day of November, 2014 (the “
Senior Note Maturity Date
”),
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 U.S. Bank National Association, as trustee (together with its
successors in such capacity, the “
Senior Note Trustee
”) under the
Indenture, dated as of November 1, 2004, between the Company and the Senior
Note Trustee, as supplemented and amended by Supplemental Indenture No. 1,
dated as of November 1, 2004 (as so supplemented and amended and as may be
further supplemented, amended or otherwise modified in accordance with its
terms, the “
Senior Note Indenture
”), to be owned and held by the Senior
Note Trustee under the terms of the Senior Note Indenture as security for the
payment of the principal of, premium (if any) and interest on the Senior Notes
(as such term is hereinafter defined).
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.
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Dated:
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NORTHWESTERN
CORPORATION
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By
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Authorized Executive Officer
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ATTEST:
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By
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Authorized Executive Officer
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[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 November 1, 2004.
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JPMORGAN
CHASE BANK, AS TRUSTEE
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By
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Authorized Officer
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C-1
[FORM OF REVERSE OF BOND]
Indenture and Series Designation
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 “First Mortgage Bonds, Collateral (2004) Series C,
due 2014” (the “
First Mortgage Bonds, Collateral (2004) Series C
”)
of the Company issued under and secured by the Indenture and described in the
supplemental indenture dated as of November 1, 2004 (the “
Supplemental
Indenture
”) between the Company and the Trustee, supplemental to the
Indenture.
Principal
The unpaid principal of the First Mortgage Bonds,
Collateral (2004) Series C, of which this Bond is one, is scheduled to be
paid on the Senior Notes Maturity Date.
Interest
The unpaid principal amount of the First Mortgage
Bonds, Collateral (2004) Series C, of which this Bond is one, bears
interest at the rate of five and seven eighth (5.875%) per annum (calculated in
the same manner as interest is calculated on the Senior Notes in accordance
with the Senior Note Indenture), payable semiannually on the first (1st) day of
each May and November, commencing on May 1, 2005 and continuing until
the principal of the First Mortgage Bonds, Collateral (2004) Series C Series
is paid (or provided for in accordance with the Senior Note Indenture), to the
Senior Note Trustee as the registered owner, without regard to, or necessity
for, any record date.
Senior Notes Applicable Share
As used herein, “
Senior Notes 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 First Mortgage Bonds, Collateral (2004)
C-2
Series C that are Outstanding on such day, and
(ii) the denominator of which is the sum of (a) the aggregate
principal amount of the First Mortgage Bonds, Collateral (2004) Series C
that are Outstanding on such day, plus (b) the aggregate principal amount
of the First Mortgage Bonds, Collateral (2004) Series C, due 2014, of the
Company (the “
Montana Senior Notes Bonds
”) that are outstanding on such
day under the Company’s Montana Mortgage (as defined in the Supplemental
Indenture). Simultaneously with issuance
and registration of the First Mortgage Bonds, Collateral (2004) Series C
in the name of the Senior Note Trustee (for the same purpose), the Montana
Senior Notes Bonds were issued to and registered in the name of the Senior Note
Trustee, to be owned and held by the Senior Note Trustee under the terms of the
Senior Note Indenture as security for the payment of the principal of, premium
(if any) and interest on the Senior Notes.
Redemption
First Mortgage Bonds, Collateral (2004) Series C,
of which this Bond is one, shall be 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 Senior
Notes become due and payable in accordance with Section 405 of the Senior Note
Indenture by reason of redemption in accordance with the Senior Note Indenture
(a “
Senior Notes Redemption Payment Date
”), First Mortgage Bonds,
Collateral (2004) Series C shall be subject to mandatory redemption by the
Company in an aggregate principal amount equal to the Senior Notes Applicable
Share of the aggregate principal amount of the Senior Notes that become so due
and payable on such Senior Notes Redemption Payment Date (a “
Corresponding
Redemption
”); and (B) on each day on which the Senior Notes become due
and payable in accordance with Section 702 of the Senior Note Indenture by
reason of acceleration of the Senior Notes in accordance with the Senior Note
Indenture (a “
Senior Notes Acceleration Payment Date
”), the entire
aggregate principal amount of the First Mortgage Bonds, Collateral (2004) Series C
shall be subject to mandatory redemption by the Company (an “
Acceleration
Redemption
”); in each case, without any necessity for notice or call by the
Company or by the Trustee (such notice and call being waived by the registered
owners of the First Mortgage Bonds, Collateral (2004) Series C by the
acceptance of the First Mortgage Bonds, Collateral (2004) Series C and in
connection with each Redemption Demand hereinafter described);
provided
,
however
, that
in the event of a rescission or annulment of the acceleration of the Senior
Notes pursuant to the Senior Note Indenture, the related Acceleration
Redemption shall be deemed to be rescinded or annulled (without prejudice to
the occurrence of another Acceleration Redemption upon and by reason of a
subsequent acceleration of the Senior Notes in accordance with the Senior Note
Indenture).
Each Corresponding Redemption of First Mortgage Bonds,
Collateral (2004) Series C on a Senior Notes Redemption Payment Date shall be
at a redemption price equal to the redemption price payable in connection with
the redemption of Senior Notes to which it corresponds (consisting of principal
of and, if applicable to such redemption of Senior Notes
C-3
in accordance with the Senior Note Indenture, premium
on such Senior Notes), together with interest accrued on the principal included
in such redemption price to such Senior Notes Redemption Payment Date (a “
Corresponding
Redemption Amount
”); and such Corresponding Redemption Amount shall be due
and payable on such Senior Notes Redemption Payment Date. Each Acceleration Redemption of First
Mortgage Bonds, Collateral (2004) Series C on a Senior Notes Acceleration
Payment Date shall be at a redemption price equal to the principal amount of
the First Mortgage Bonds, Collateral (2004) Series C (without premium),
together with interest accrued on said principal to such Senior Notes
Acceleration Payment Date (an “
Acceleration Redemption Amount
”); and
such Acceleration Redemption Amount shall be due and payable on such Senior
Notes Acceleration Payment Date. In the
event of any failure by the Company to pay when due the Corresponding
Redemption Amount with respect to a Corresponding Redemption of First Mortgage
Bonds, Collateral (2004) Series C or the Acceleration Redemption Amount with
respect to an Acceleration Redemption of First Mortgage Bonds, Collateral
(2004) Series C, interest shall accrue on such unpaid Corresponding Redemption
Amount or such unpaid Acceleration Redemption Amount at the rates (and in
amounts equal to the Senior Notes Applicable Share of the amounts) of interest
that accrue on the corresponding unpaid principal of, premium (if any) and
interest on the Senior Notes in accordance with the Senior Note Indenture.
The Trustee may conclusively presume that no
redemption of the First Mortgage Bonds, Collateral (2004) Series C is required
unless and until it shall have received a written notice from the Senior Note
Trustee, signed by a person purporting to be its duly authorized officer,
stating that Senior Notes became due and payable pursuant to Section 405 or 702
of the Senior Note Indenture by reason of redemption or acceleration in
accordance with the Senior Note Indenture (a “
Redemption Demand
”). Each Redemption Demand also shall state (i) the
date on which Senior Notes became due and payable by reason of redemption or
acceleration in accordance with the Senior Note Indenture, (ii) the principal
amount of the Senior Notes that became so due and payable on such date, (iii) the
principal amount of the First Mortgage Bonds, Collateral (2004) Series C to
be redeemed on such date in accordance with the Supplemental Indenture by
reason of such redemption or acceleration, and (iv) the Corresponding
Redemption Amount or the Acceleration Redemption Amount payable on such date
with respect to First Mortgage Bonds, Collateral (2004) Series C (determined
in accordance with the Supplemental Indenture) and setting forth the amounts of
the respective portions thereof representing principal of, premium (if any) and
interest on the First Mortgage Bonds, Collateral (2004) Series C. Each Redemption Demand shall be deemed to constitute
a waiver by the Senior Note Trustee, as registered owner of all First Mortgage
Bonds, Collateral (2004) Series C then Outstanding, of notice of
redemption and call for redemption by the Company or the Trustee of the First
Mortgage Bonds, Collateral (2004) Series C subject to redemption as
described in such Redemption Demand. The
Trustee may conclusively presume the statements contained in each Redemption
Demand to be correct (and the Trustee shall be fully protected in relying
thereon).
C-4
The Trustee may conclusively presume that no
rescission or annulment of an Acceleration Redemption (in respect of which the
Trustee has received a Redemption Demand) is required unless and until it shall
have received a written notice from the Senior Note Trustee, signed by a person
purporting to be its duly authorized officer, stating that the acceleration of
the Senior Notes has been rescinded or annulled in accordance with the Senior
Note Indenture (a “
Rescission Notice
”).
Each Rescission Notice also shall state the date on which the acceleration
of the Senior Notes was rescinded or annulled in accordance with the Senior
Note Indenture and, as consequence, the acceleration of the First Mortgage
Bonds, Collateral (2004) Series C was rescinded or annulled in accordance
with the Supplemental Indenture. The
Trustee may conclusively presume the statements contained in any Rescission
Notice to be correct (and the Trustee shall be fully protected in relying
thereon).
Additional Terms
First Mortgage Bonds, Collateral (2004) Series C,
of which this Bond is one, shall be subject to the following other terms and
conditions:
(I) It
is expressly stated (for the avoidance of any doubt) that, notwithstanding
anything in this Bond or the Supplemental Indenture to the contrary (other than
the provisions of subdivision (III) below), each payment of principal of,
premium (if any) or interest on the First Mortgage Bonds, Collateral (2004) Series C
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 Senior Notes Applicable Share of, a payment of principal of, premium (if
any) or interest on the Senior Notes that becomes due and payable on such day
in accordance with the Senior Note Indenture.
(II) The
obligation of the Company to make each payment of principal of, premium (if
any) or interest on the First Mortgage Bonds, Collateral (2004) Series C that
becomes due and payable in accordance with the Supplemental Indenture
(A) shall be fully satisfied and discharged if the corresponding payment
of the principal of, premium (if any) or interest on the Senior Notes shall
have been fully paid, or if provision for the full payment thereof shall been
made (by depositing moneys sufficient for such full payment with the Senior
Note Trustee), in either case under and in accordance with the Senior Note
Indenture, and (B) shall be partially satisfied and discharged if the
corresponding payment of the principal of, premium (if any) or interest on the
Senior Notes shall have been partially paid, or if provision for the partial
payment thereof shall have been made (by depositing moneys sufficient for such
partial payment with the Senior Note Trustee), in either case, under and in
accordance with the Senior Note Indenture (such partial satisfaction and
discharge with respect to the First Mortgage Bonds, Collateral (2004) Series C
to be in an amount equal to the Senior Notes Applicable Share of the amount of
such partial payment or provision for partial payment with respect to the
Senior Notes).
C-5
(III) Nothing
in any of First Mortgage Bonds, Collateral (2004) Series C (including,
without limitation, any reference to the principal payable with respect to the First
Mortgage Bonds, Collateral (2004) Series C being determined on the basis
of the Senior Notes Applicable Share of the principal payable with respect to
the Senior Notes) shall, or shall be deemed or construed to, (A) increase
the aggregate principal amount of the First Mortgage Bonds, Collateral (2004) Series C
that are Outstanding from time to time, (B) cause or permit an amount of
principal of the First Mortgage Bonds, Collateral (2004) Series C to be or
to become due and payable which, when added to all other principal of such Bonds
theretofore paid, exceeds $64,000,000, or (C) cause or permit to be or to
become due and payable interest on the First Mortgage Bonds, Collateral (2004) Series C
which is payable on any principal of the First Mortgage Bonds, Collateral
(2004) Series C that is in excess of the principal of the First Mortgage
Bonds, Collateral (2004) Series C as restricted pursuant to the preceding
clauses (A) and (B).
Transfer Restrictions
First Mortgage Bonds, Collateral (2004) Series C,
of which this Bond is one, shall not be transferable except to any successor
Senior Note Trustee under the Senior Note Indenture. As a condition precedent to any transfer of
the First Mortgage Bonds, Collateral (2004) Series C by the Senior Note
Trustee, the Senior Note Trustee 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 Senior Note Trustee, signed by a person purporting to be its duly
authorized officer, certifying that the transferee in such transfer is a
successor Senior Note Trustee under the Senior Note Indenture (and the Trustee
and the Bond Registrar may conclusively presume the statements in any such
certificate of the Senior Note Trustee to be correct).
Any transfer of First Mortgage Bonds, Collateral
(2004) Series C (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 First Mortgage Bonds, Collateral (2004) Series C to a
successor Senior Note Trustee under the Senior Note Indenture, 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 First Mortgage Bonds, Collateral (2004) Series C
by the Senior Note Trustee, 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 First Mortgage Bonds, Collateral
(2004) Series C by the Senior Note Trustee).
C-6
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 First Mortgage Bonds,
Collateral (2004) Series C 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.
C-7
Exhibit D
to
Supplemental Indenture
Certain After-Acquired Property Subject to the Lien of
the Indenture
Exhibit D
The following properties, located in the following
counties of the State of South Dakota, are subject to the Lien of the Indenture
pursuant to Granting Clause Second of the Original Indenture:
Beadle County
Outlot 13 of Coutts’ Outlots 9 thru 17, a Part of the
North Half of the NW 1/4 of Section 13, Township 110, Range 62, Beadle County,
South Dakota. Except: The East Seventy-five Feet (75’) of the South One Hundred
Fifteen Feet (115’) of Outlot Thirteen (13), Coutts Outlots Nine (9) thru
Seventeen (17), a part of the North one-half (N 1/2) of the Northwest Quarter
(NW 1/4) of Section Thirteen (S13), Township One Hundred Ten North (T110N),
Range Sixty-two West (R62W) of the Fifth (5th) Principal Meridian, City of
Huron, Beadle County, South Dakota.
The West Five feet (5’) of the North Forty feet (40’)
of the South Ninety feet (90’) of the Southeast Quarter (SE1/4) of Section
Thirteen (S13), Township One Hundred Eleven North (T.111 N.), Range Sixty-four
West (R.64 W.) of the Fifth (5th) Principal Meridian, Beadle County, South
Dakota, containing 0.005 acres more or less.
The West Five feet (5’) of the North Fifteen feet (15’)
of the South One Hundred Five feet (105’) of the Southeast Quarter (SE1/4) of
Section Thirteen (S13), Township One Hundred Eleven North (T.111 N), Range
Sixty-four West (R.64 W.) of the Fifth (5th) Principal Meridian, Beadle County,
South Dakota, containing 0.005 acres more or less.
The South Twenty feet (20’) of the East Forty feet (40’)
of Broadland Creek Industrial Park Lot Four (4), a part of the Southeast
Quarter (SE1/4) of Section Twenty-five (S25), Township One Hundred Eleven North
(T.111 N.), Range Sixty-two West (R.62 W.) of the Fifth (5th) Principal
Meridian, Beadle County, South Dakota, containing 0.18 acres more of less.
Brown County
NORTHERN / NORTHWESTERN TBS ADDITION, a part of the
Northeast Quarter (NE 1/4) of Section Nineteen (S 19), Township One Hundred
Twenty-two North (T 122N), Range Sixty-three West (R. 63W) of the Fifth (5th)
Principal Meridian, Brown County, South Dakota, containing 0.21 acres more or
less.
Charles Mix County
Lot Three (3) and the South Eighteen feet (18’) of Lot
Two (2), Block One (1), B. W. LASHIER’S FIRST ADDITION to the town (now City)
of Wagner, Charles Mix County, South Dakota.
D-1
Clark County
NWPS FORDHAM \ CLARK GAS REG-STATION ADDITION, a part
of the Northwest Quarter (NW1/4) of the Southwest Quarter (SW1/4) of Section
One (S.1), Township One Hundred Fifteen North (T.115 N.), Range Fifty-nine West
(R.59 W.) of the Fifth (5th) Principal Meridian, Clark County, South Dakota.
Davison County
The East Thirty-three feet (33’) of the North One
Hundred Fifty feet (150’) of the South One Hundred Eighty-three feet (183’) of
the Southeast Quarter (SE 1/4) of Section Nine (S9), Township One
Hundred Three North (T. 103 N.), Range Sixty West (R. 60 W.) of the Fifth
(5th) Principal Meridian, City of Mitchell, Davison County, South Dakota, said
property being a portion of the vacated statutory public right-of-way lying
between the Southeast Quarter (SE 1/4) of said Section Nine (S9) and Lot “N” in
the Southwest Quarter (SW 1/4) of Section Ten (S10) Township One Hundred Three
North (T. 103 N.) Range Sixty West (R. 60 W.), containing 0.11 acres more or
less.
Day County
Lot One (1) and Lot Two (2) in Block Sixteen (16) of
Prior’s First Addition to the City of Webster, Day County, South Dakota.
Hutchinson County
NWPS PARKSTON SUB SECOND ADDITION, a part of the
Southeast Quarter (SE1/4) of the Northeast Quarter (NE1/4) of Section Thirteen
(S.13), Township Ninety-nine North (T.99 N.), Range Sixty-one West (R.61 W.) of the
Fifth (5th) Principal Meridian, in or adjacent to the City of
Parkston, Hutchinson County, South Dakota, containing 0.14 acres more or less.
Lake County
The West Half (W.1/2) of Lot Ten (10) in Block
Twenty-nine (29) of the Original Plat of Madison, Lake County, South Dakota,
according to the recorded plat thereof.
NWPS LAKE MADISON TAP ADDITION, a part of the South
One half (S1/2) of the Southwest Quarter (SW1/4) of Section One (1), Township
One Hundred Five North (T.105 N.), Range Fifty-three West (R.53 W.) of the
Fifth (5th) Principal Meridian, Lake County, South Dakota, containing 0.07
acres more or less.
NWPS LAKE MADISON REG ADDITION, a part of the
Southwest Quarter (SW1/4) of the Northwest Quarter (NW1/4) of Section Five
(S5), Township One Hundred Five North (T.105 N.), Range Fifty-one West (R.51
W.) of the Fifth (5th) Principal Meridian, Lake County, South Dakota,
containing 0.13 acres more or less.
D-2
Spink County
NWPS MELLETTE GAS REG-STA ADDITION, a part of Lot One
of Wheat Growers Subdivision in the southeast Quarter (SE1/4) of Section Two
(S2) Township One Hundred Nineteen North (T.119 N.), Range Sixty-four West
(R.54 W.) of the Fifth (5th) Principal Meridian, Spink County, South Dakota,
containing 0.09 acres more of less.
Yankton County
Gurney’s Outlot 3 in the Southwest Quarter (SW 1/4) of
the Northeast Quarter (NE 1/4) of Section Twelve (12), Township Ninety-three
(93) North, Range Fifty-six (56) West of the 5th P.M., City of Yankton, Yankton
County, South Dakota, containing 8.76 acres more or less.
County Auditor’s Tract 1A in NE 1/4 of Section 2,
Township 93 North, Range 57 West of the 5th P.M., Yankton County, South Dakota.
(Commencing at a point 33 feet due West of the Northeast corner of Section 2,
TWP 93 N., Range 57, Yankton County West of the 5th PM, thence due South a
distance of 511.2 feet, thence due West a distance of 511.2 feet, thence due
North a distance of 511.2 feet, thence due East to the point of beginning
consisting of a tract of 6 acres subject to existing easement of record for
road, highway of other public purposes.
Now known as County Auditor’s Tract #1, as platted in Book 4S, Page 4B.)
LOT “C” OF YAGGIES THIRD ADDITION, a portion of
Yaggies Third Addition, situated in Northwest Quarter of Section Nine (S9),
Township Ninety-three (T.93 N.), Range Fifty-five West (R.55 W.) of the Fifth
(5th) Principal Meridian, Yankton County, South Dakota, containing 13.88 acres
more or less.
D-3
Exhibit 99.1
$225,000,000
CREDIT AGREEMENT
among
NORTHWESTERN CORPORATION,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
LEHMAN BROTHERS INC.
and
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arrangers,
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent,
UNION BANK OF CALIFORNIA, N.A. and
KEYBANK NATIONAL ASSOCIATION,
as Co-Documentation Agents,
and
LEHMAN COMMERCIAL PAPER INC.,
as Administrative Agent
and
as Collateral Agent
Dated as of November 1, 2004
TABLE OF CONTENTS
i
|
ANNEXES:
|
|
A
|
Pricing
Grid
|
|
B
|
Existing
Letters of Credit
|
|
SCHEDULES:
|
|
|
1.1
|
Gas Storage Arrangements
|
|
4.4(a)
|
First
Mortgage Approvals
|
|
4.4(b)
|
Consents,
Authorizations, Filings and Notices
|
|
4.6
|
Litigation
|
|
4.8
|
Title
to Property
|
|
4.13
|
ERISA
|
|
4.14
|
Limiting
Regulations
|
|
4.15
|
Subsidiaries
|
|
4.17
|
Environmental
|
|
7.2(d)
|
Existing
Indebtedness
|
|
7.3(f)
|
Existing
Liens
|
|
7.7
|
Existing
Investments
|
|
7.9
|
Affiliate
Transactions
|
|
7.16
|
Negative
Pledge Limitations
|
|
|
|
|
EXHIBITS:
|
|
|
A
|
Form
of Bond Delivery Agreement
|
|
B
|
Form
of Compliance Certificate
|
|
C-1
|
Form
of Secretary’s Certificate
|
|
C-2
|
Form
of Closing Certificate
|
|
D-1
|
Form
of Term Note
|
|
D-2
|
Form
of Revolving Credit Note
|
|
D-3
|
Form
of Swing Line Note
|
|
E
|
Form
of Assignment and Acceptance
|
|
F
|
Form
of Exemption Certificate
|
|
G
|
Form
of Lender Addendum
|
|
H
|
Form
of Borrowing Notice
|
|
I
|
Form
of Letter of Credit Request
|
|
|
|
|
|
iv
CREDIT AGREEMENT, dated as
of November 1, 2004, among NORTHWESTERN CORPORATION, a Delaware corporation
(the “
Borrower
”), the several banks and other financial institutions or
entities from time to time parties to this Agreement (the “
Lenders
”),
LEHMAN BROTHERS INC. and DEUTSCHE BANK SECURITIES INC., as joint lead arrangers
and joint bookrunners (in such capacity, the “
Arrangers
”), DEUTSCHE BANK
SECURITIES INC., as syndication agent (in such capacity, the “
Syndication
Agent
”), UNION BANK OF CALIFORNIA, N.A. and KEYBANK NATIONAL ASSOCIATION,
as Co-documentation agents (in such capacity, the “
Co-Documentation Agents
”),
and LEHMAN COMMERCIAL PAPER INC., as administrative agent (in such capacity,
the “
Administrative Agent
”) and as collateral agent (in such capacity,
the “
Collateral Agent
”).
W I T
N E S S E T H:
WHEREAS, the Borrower has
filed a case under Chapter 11 of the United States Bankruptcy Code (the “
Bankruptcy Case
”)
in the United States Bankruptcy Court for the District of Delaware (the “
Bankruptcy Court
”)
and the Borrower plans to emerge from the Bankruptcy Case pursuant to the
Borrower’s Second Amended and Restated Plan of Reorganization dated August 18,
2004 under Chapter 11 of the Bankruptcy Code (as amended from time to time, the
“
Plan of Reorganization
”) and, pursuant thereto, to consummate certain
financings on the Effective Date as defined under the Plan of Reorganization;
WHEREAS, in order to obtain
funds necessary to consummate such financings the Borrower has requested the
Lenders to (A) extend credit to the Borrower in the form of term loans in an
aggregate principal amount not in excess of $100,000,000 and (B) make revolving
credit loans in an aggregate principal amount not in excess of $125,000,000 at
any one time outstanding. The proceeds
of the term loans are to be used by the Borrower to refinance existing
indebtedness, including without limitation the repayment of all amounts due or
outstanding under the Existing Credit Facility and to pay related fees and
expenses. The proceeds of the revolving
credit loans are to be used by the Borrower for general corporate purposes of
the Borrower and its subsidiaries (other than the Excluded Subsidiaries) in the
ordinary course of business. The Loans
shall be secured by the issuance of certain first mortgage bonds to and
registered in the name of the Collateral Agent for the ratable benefit of the
Lenders (it being understood that payments on the Loans shall be deemed
payments on such first mortgage bonds and payments on such first mortgage bonds
shall be applied to the payment of the Loans); and
WHEREAS, the Lenders are
willing to make such credit facilities available to the Borrower upon and
subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in
consideration of the premises and the agreements hereinafter set forth, the
parties hereto hereby agree as follows:
1.1
Defined Terms
. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this
Section 1.1.
“
Acquisition
”: any
transaction, or any series of related transactions, by which the Borrower (a)
acquires any ongoing business or all or substantially all of the assets of any
Person or
division thereof which
constitutes an ongoing business, whether through purchase of assets, merger or
otherwise (other than through the acquisition of Capital Stock of such Person)
or (b) directly or indirectly acquires the Capital Stock of any Person such
that such Person would be a Wholly Owned Subsidiary after giving effect to such
acquisition (and any related transactions consummated substantially
simultaneously therewith).
“
Administrative Agent
”: as defined in the preamble hereto.
“
Affiliate
”: as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes
of this definition, “control” of a Person means the power, directly or
indirectly, either to (a) vote 10% or
more of the securities having ordinary voting power for the election of
directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
“
Agents
”: the collective reference to the Syndication
Agent, the Administrative Agent, the Co-Documentation Agents and the Collateral
Agent.
“
Aggregate Exposure
”: with respect to any Lender at any time, an
amount equal to (a) until the Closing
Date, the aggregate amount of such Lender’s Commitments at such time and (b) thereafter, the sum of (i) the aggregate
then unpaid principal amount of such Lender’s Term Loans and (ii) the amount of
such Lender’s Revolving Credit Commitment then in effect or, if the Revolving
Credit Commitments have been terminated, the amount of such Lender’s Revolving
Extensions of Credit then outstanding.
“
Aggregate Exposure
Percentage
”: with respect to any
Lender at any time, the ratio (expressed as a percentage) of such Lender’s
Aggregate Exposure at such time to the sum of the Aggregate Exposures of all
Lenders at such time.
“
Agreement
”: this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
“
Applicable Margin
”: (i) in the case of Revolving Credit Loans, a
percentage determined from time to time in accordance with the pricing grid
attached hereto as Annex A and (ii) in the case of Term Loans, 175 basis points
for Eurodollar Loans and 75 basis points for Base Rate Loans.
“
Application
”: an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing Lender to
issue a Letter of Credit.
“
Arrangers
”: as defined in the preamble hereto.
“
Asset Sale
”: any Disposition of Property or series of
related Dispositions of Property (excluding any such Disposition permitted by
clause (a), (b), (c), (d), (e) or (h) of Section 7.5) which yields gross
proceeds to the Borrower or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of notes
or other debt securities and valued at fair market value in the case of other
non-cash proceeds) in excess of $5,000,000.
2
“
Assignee
”: as defined in Section 10.7(c).
“
Assignor
”: as defined in Section 10.7(c).
“
Available Revolving
Credit Commitment
”: with respect to
any Revolving Credit Lender at any time, an amount equal to the excess, if any,
of (a) such Lender’s Revolving Credit
Commitment then in effect
over
(b)
such Lender’s Revolving Extensions of Credit then outstanding.
“
Bankruptcy Case
”: as defined in the recitals hereto.
“
Bankruptcy Court
”: as defined in the recitals hereto.
“
Base Rate
”: for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus ½ of 1%. For purposes hereof: “
Prime Rate
” shall mean the prime
lending rate as set forth on the British Banking Association Telerate Page 5
(or such other comparable page as may, in the reasonable opinion of the Administrative
Agent, replace such page for the purpose of displaying such rate), as in effect
from time to time. Any change in the
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“
Base Rate Loans
”: Loans for which the applicable rate of
interest is based upon the Base Rate.
“
Benefitted Lender
”: as defined in Section 10.8.
“
Blue Dot
”: collectively, Blue Dot Services, Inc., a
Delaware corporation, and its Subsidiaries.
“
Board
”: the Board of Governors of the Federal Reserve
System of the United States (or any successor).
“
Bond Delivery Agreement
”: the Bond Delivery and Collateral Agreement to
be executed and delivered by the Borrower and the Collateral Agent,
substantially in the form of Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time.
“
Borrower
”: as defined in the preamble hereto.
“
Borrowing Date
”: any Business Day specified by the Borrower as
a date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
“
Borrowing Notice
”: with respect to any request for borrowing of
Loans hereunder, a notice from the Borrower, substantially in the form of, and
containing the information prescribed by, Exhibit H, delivered to the
Administrative Agent.
3
“
Business Day
”: (a) for all purposes other than as covered by
clause (b) below, 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
and (b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (a) and which is also a day for trading by and
between banks in Dollar deposits in the interbank eurodollar market.
“
Capital Lease
Obligations
”: with respect to any
Person, the obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person under GAAP; and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
“
Capital Stock
”: any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of the
foregoing.
“
Cash Equivalents
”: (a)
marketable direct obligations issued by, or unconditionally guaranteed by, the
United States government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year
from the date of acquisition; (b)
certificates of deposit, time deposits, bankers acceptances, eurodollar time
deposits or overnight bank deposits having maturities of six months or less
from the date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States of America or any state thereof
having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least
A-2 by Standard & Poor’s or P-2 by Moody’s, or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named
rating agencies cease publishing ratings of commercial paper issuers generally,
and maturing within 270 days from the date of acquisition; (d) repurchase obligations of any Lender or of
any commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with respect to securities
issued or fully guaranteed or insured by the United States government; (e) securities (including tax-exempt debt
obligations) with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A by
4
Standard & Poor’s or A2
by Moody’s (or publicly traded or open-ended bond funds that invest exclusively
in such securities); (f) securities with
maturities of six months or less from the date of acquisition backed by standby
letters of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition; (g) Dollar denominated debt
obligations of corporations maturing within 12 months from the date of the
acquisition rated at least A by Standard & Poor’s or A2 by Moody’s; (h)
shares of bond funds rated at least A by Standard & Poor’s or A2 by Moody’s
having weighted average maturities of 12 months or less; (i) auction rate
securities rated at least AAA by Standard & Poor’s or Aaa by Moody’s; (j)
debt obligations of corporations maturing within 12 months from the date of
acquisition rated at least A by Standard & Poor’s or A2 by Moody’s; (k)
Canadian currency deposits having maturities of 3 months or less held by any
Canadian Subsidiary; (l) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a) through
(k) of this definition.
“
Change of Control
”: the occurrence of any of the following
events: (a) any Person or “group” (within the meaning of
Section
13(d)
or
14(d)
of the Securities Exchange Act of 1934) (i) shall
have acquired beneficial ownership of 40% or more of the aggregate outstanding
classes of Capital Stock having voting power in the election of directors of
the Borrower or (ii) shall obtain the power (whether or not exercised) to elect
a majority of the Borrower’s directors; (b) a majority of the seats (other than
vacant seats) on the Board of Directors of the Borrower shall at any time be
occupied by Persons who were neither (i) nominated by the Board of Directors,
(ii) nominated by any Person having, as of the Closing Date, beneficial
ownership of 20% or more of the
aggregate outstanding classes of Capital Stock having voting power in the election
of directors of the Borrower, nor (iii) appointed by directors so nominated;
(c) the Borrower shall be liquidated or dissolved; or (d) a “Change of Control”
as such term is defined in the Senior Notes Indenture. For the avoidance of doubt, neither the
issuance of Capital Stock nor the appointment of directors, in each case on or
before the Closing Date, in connection with the implementation of the
Reorganization Plan shall constitute a “Change of Control” under clause (a) or
(b) above.
“
Closing Date
”: the date on which the conditions precedent
set forth in Section 5.1 shall have been satisfied, which date shall be not
later than November 1, 2004.
“
Code
”: the Internal Revenue Code of 1986, as amended
from time to time.
“
Co-Documentation Agents
”:
as defined in the preamble hereto.
“
Collateral
”: the First Mortgage Bonds issued to and
registered in the name of the Collateral Agent.
“
Collateral Agent
”: as defined in the preamble hereto.
“
Colstrip
”: collectively, the Colstrip 1, 2 and 3
Transmission Assets and the Colstrip 4 Interest.
“
Colstrip 1, 2 and 3
Transmission Assets
”: collectively,
(a) the portion of the Borrower’s interest in the facilities for the
transmission of the output from the Colstrip 1 and 2 generating project and the
Colstrip 3 and 4 generating project in the vicinity of Colstrip, Montana, to
the interconnection with the transmission system of Bonneville Power
Administration (“BPA”) in the vicinity of Townsend, Montana, relating to the
50% undivided interest formerly owned by the Borrower in Colstrip Units 1 and 2
and the 30% undivided interest formerly owned by the Borrower in Colstrip Unit
3, (b) the related interest of the Borrower in the Colstrip Project
Transmission Agreement, dated as of May 6, 1981, as amended (the “Colstrip
Project Transmission Agreement”), among The Montana Power Company, Puget Sound
Power & Light Company, The Washington Water Power Company and Portland
General Electric Company, and (c) the related interest of the Borrower in all
contracts, transferable permits and other tangible and intangible assets
relating to the foregoing. The
transmission
5
facilities include 500 kV
transmission lines in two segments, one line from the Colstrip 500 kV
switchyard to the Broadview 500 kV switchyard northwest of Billings, Montana,
and two lines from the Broadview 500 kV switchyard to the interconnection with
BPA’s 500 kV double circuit line near Townsend, Montana and are generally
described in the Colstrip Project Transmission Agreement. As of the date hereof, the transmission
allocation associated with the Colstrip 1, 2 and 3 interests consists of 612.8
MW on the Colstrip-Broadview segment and 258.5 MW on the Broadview-Townsend
segment.
“
Colstrip 4 Interest
”: all assets and property of any kind relating
to the Borrower’s interest in Unit 4 of the Colstrip generating project,
including real property interests, contracts, transferable permits and other
tangible and intangible assets relating to the forgoing. The Colstrip 4 Interest includes the Borrower’s
leasehold interest in a 30% undivided interest in Unit 4 and a 15% undivided
interest in the common facilities relating thereto which was sold and leased
back pursuant to a lease financing transaction, certain retained assets which
were not part of the lease financing, fee interests in the plant site property
and related property, the related interest in the Ownership and Operation
Agreement related to Units 3 and 4, and contracts for the sale of power from
Unit 4.
“
Commitment
”: with respect to any Lender, each of the Term
Loan Commitment and the Revolving Credit Commitment of such Lender.
“
Commitment Fee Rate
”: the rate per annum determined from time to
time pursuant to the pricing grid attached hereto as Annex A.
“
Commonly Controlled
Entity
”: an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
“
Compliance Certificate
”: a certificate duly executed by a Responsible
Officer, substantially in the form of Exhibit B.
“
Confidential Information
Memorandum
”: collectively, the
Confidential Information Memorandum Executive Summary, including Projection
Supplement, dated August 2004 and the Confidential Information Memorandum,
including Projection Supplement, dated September 2004, furnished to the initial
Lenders in connection with the syndication of the Facilities.
“
Confirmation Order
”: as defined in Section 5.1(d).
“
Consolidated Debt to
Capitalization Ratio
”: as of the
last day of any period, the ratio of (a)
Consolidated Funded Debt on such day to (b) the
sum of Consolidated Net Worth and Consolidated Funded Debt on such day.
“
Consolidated EBITDA
”: of any Person for any period, Consolidated
Net Income of such Person and its Subsidiaries for such period
plus
,
without duplication and to the extent reflected as a charge in the statement of
such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense of such Person and its Subsidiaries,
amortization
6
or writeoff of debt discount
and debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness, (c)
depreciation and amortization expense, (d) amortization
of intangibles (including, but not limited to, goodwill) and organization
costs, (e) any extraordinary,
unusual or non-recurring non-cash expenses or losses (including losses on sales
of assets outside of the ordinary course of business whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, but excluding any such expenses or losses that constitute an
accrual of or reserve for future cash payments), and (f) bankruptcy related and
other one-time expenses acceptable to the Administrative Agent not to exceed
$18.9 million for FQ4 2003, $9.2 million for FQ1 2004, $12.9 million for FQ2 2004,
$10.6 million for FQ3 2004 and $25 million for FQ4 2004
minus
, to the
extent included in the statement of such Consolidated Net Income for such
period, the sum of (i) interest income (except to the extent deducted in
determining such Consolidated Net Income), and (ii) any extraordinary, unusual
or non-recurring income or gains (including gains on sales of assets outside of
the ordinary course of business whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such
period), all as determined on a consolidated basis.
“
Consolidated Funded Debt
”: at any date, the aggregate principal amount
of all Funded Debt of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
“
Consolidated Interest
Coverage Ratio
”: for any period, the
ratio of (a) Consolidated EBITDA of the
Borrower and its Subsidiaries for such period to (b) Consolidated Interest Expense of the Borrower and its
Subsidiaries for such period.
“
Consolidated Interest
Expense
”: of any Person for any
period, total cash interest expense (including that attributable to Capital
Lease Obligations) of such Person and its Subsidiaries for such period with
respect to all outstanding Indebtedness of such Person and its Subsidiaries
(including, without limitation, all commissions, discounts and other fees and
charges owed by such Person with respect to letters of credit and bankers’
acceptance financing and net costs of such Person under Hedge Agreements in respect
of interest rates to the extent such net costs are allocable to such period in
accordance with GAAP); provided, however, that for purposes of Section 7.1(a),
(i) Consolidated Interest Expense for the period ending with FQ1 2005 shall
mean Consolidated Interest Expense for FQ1 2005 multiplied by four, (ii)
Consolidated Interest Expense for the period ending with FQ2 2005 shall mean
Consolidated Interest Expense for the two consecutive fiscal quarters ending
with FQ2 2005 multiplied by two, and (iii) Consolidated Interest Expense for
the period ending with FQ3 2005 shall mean Consolidated Interest Expense for
the three consecutive fiscal quarters ending with FQ3 2005 multiplied by
4/3rds.
“
Consolidated Net Income
”: of any Person for any period, the consolidated
net income (or loss) of such Person and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP;
provided
,
that in calculating Consolidated Net Income of the Borrower and its
consolidated Subsidiaries for any period, there shall be excluded (a) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary of the Borrower or is merged
into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of the Borrower) in which the
7
Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c)
the undistributed earnings of any Subsidiary of the Borrower to the extent that
the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any Contractual
Obligation (other than under any Loan Document) or Requirement of Law
applicable to such Subsidiary.
“
Consolidated Net Worth
”: at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of the
Borrower and its Subsidiaries under stockholders’ equity at such date.
“
Contractual Obligation
”: as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
“
Cornerstone
”: collectively, Cornernorth, LLC and its
Subsidiaries.
“
Default
”: any of the events specified in Section 8,
whether or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
“
Defaulted Advance
”
means, with respect to any Lender at any time, the portion of any amounts
required to be paid or made available by such Lender to the Borrower pursuant
to Sections 2.1 or 2.4 at or prior to such time which has not been made by
such Lender or by the Administrative Agent for the account of such Lender
pursuant to Section 2.18(f) as of such time.
“
Defaulted Amount
”
means, with respect to any Lender at any time, any amount required to be paid
by such Lender to the Administrative Agent or any other Lender hereunder or
under any other Loan Document at or prior to such time which has not been so
paid as of such time, including, without limitation, any amount required to be
paid by such Lender to (a) the Swing Line Lender pursuant to Section 2.7,
(b) the Issuing Lender pursuant to Section 3.4, (c) the Administrative
Agent pursuant to Sections 2.2, 2.5 or 2.7, (d) any other Lender pursuant
to Section 2.7 and (e) any Agent pursuant to Section 9.7.
“
Defaulting Lender
”
means, at any time that the conditions precedent set forth in Sections 5.1, 5.2
and 5.3 have been satisfied or properly waived, any Lender that, at such time,
(a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take any action
with respect to itself or be the subject of any action or proceeding of a type
described in Section 8(f).
“
Derivatives Counterparty
”: as defined in Section 7.6.
“
Deutsche Bank Entity
”: any of Deutsche Bank Securities Inc. or any
of its affiliates.
“
Disclosure Statement
”: the Second Amended and Restated Disclosure
Statement of the Borrower dated August 18, 2004.
“
Disposition
”: with respect to any Property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other disposition
thereof (or, in each case, any series of
8
related dispositions); and the
terms “
Dispose
” and “
Disposed of
” shall have correlative
meanings.
“
Dollars
” and “
$
”: dollars in lawful currency of the United
States of America.
“
Environmental Laws
”: any and all laws, rules, orders, regulations,
statutes, ordinances, guidelines, codes, decrees, or other legally enforceable
requirements (including, without limitation, common law) of any international
authority, foreign government, the United States, or any state, local,
municipal or other governmental authority, regulating, relating to or imposing
liability or standards of conduct concerning protection of the environment or
of human health, or employee health and safety, as has been, is now, or may at
any time hereafter be, in effect.
“
Environmental Permits
”: any and all permits, licenses, approvals,
registrations, notifications, exemptions and other authorizations required
under any Environmental Law.
“
ERISA
”: the Employee Retirement Income Security Act
of 1974, as amended from time to time.
“
Eurocurrency Reserve
Requirements
”: for any day, as
applied to a Eurodollar Loan, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including, without limitation, basic, supplemental,
marginal and emergency reserves) under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System.
“
Eurodollar Base Rate
”: with respect to each day during each Interest
Period, the rate per annum determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Telerate screen as of 11:00
A.M., London time, two Business Days prior to the beginning of such Interest
Period. In the event that such rate does
not appear on Page 3750 of the Telerate screen (or otherwise on such screen),
the “
Eurodollar Base Rate
” for purposes of this definition shall be
determined by reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Administrative Agent.
“
Eurodollar Loans
”: Loans for which the applicable rate of
interest is based upon the Eurodollar Rate.
“
Eurodollar Rate
”: with respect to each day during each Interest
Period, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th of 1%):
|
Eurodollar Base Rate
|
|
|
1.00 - Eurocurrency
Reserve Requirements
|
|
9
“
Eurodollar Tranche
”: the collective reference to Eurodollar Loans
under a particular Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
“
Event of Default
”: any of the events specified in Section 8,
provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
“
Excess Cash Flow
”: with respect to any specified Person for any
period, the Consolidated EBITDA of such Person for such period,
minus
:
(A) the items delineated in clauses (a), (b) and (f) of the
definition of Consolidated EBITDA, to the extent such items were actually paid
in cash during such period;
minus
,
(B) capital expenditures of such Person and its Subsidiaries
for such period,
in each case, on a
consolidated basis, determined in accordance with GAAP.
“
Excluded Subsidiaries
”: collectively, Blue Dot, Cornerstone and
Netexit.
“
Existing Credit Facility
”: that certain Amended and Restated Credit
Agreement dated as of November 10, 2003 among the Borrower, the Lenders party
thereto and Credit Suisse First Boston, as administrative agent, as amended to
the date hereof.
“
Existing Letters of
Credit”
: collectively, the letters
of credit listed on Annex B issued for the account of the Borrower pursuant to
the terms of the Existing Credit Facility.
“
Facility
”: collectively, each of (a) the Term Loan Commitments and the Term Loans
made thereunder (the “
Term Loan Facility
”) and (b) the Revolving Credit
Commitments and the extensions of credit made thereunder (the “
Revolving
Credit Facility
”).
“
Federal Funds Effective
Rate
”: for any day, the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
“
Fee Letter
”: the Fee Letter dated August 12, 2004 among
Lehman Brothers Inc. and Deutsche Bank Securities Inc. (“DBSI”) as exclusive
joint lead book managers and joint lead arrangers, DBSI, as syndication agent,
Lehman Commercial Paper Inc., as administrative agent, collateral agent and an
initial lender, Deutsche Bank AG Cayman Islands Branch as an initial lender,
and the Borrower.
“
Final Order
”: an order, ruling or judgment of the
Bankruptcy Court as to which the time to appeal or petition for certiorari, or move
for reargument or rehearing has expired and
10
as to which no appeal, petition
for certiorari, or other proceedings for reargument or rehearing shall then be
pending, or as to which any right to appeal, petition for certiorari, reargue,
or rehear shall have been waived in writing in form and substance satisfactory
to the Borrower or, in the event that an appeal, writ of certiorari, or
reargument or rehearing thereof has been sought, such order or judgment of the
Bankruptcy Court shall have been determined by the highest court to which such
order was appealed, or certiorari, reargument or rehearing shall have been
denied and the time to take any further appeal, petition for certiorari or move
for reargument or rehearing shall have expired; provided, however, that the
possibility that a motion under Rule 59 or Rule 60 of the Federal Rules of
Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed
with respect to such order shall not cause such order not to be a Final Order.
“
First Mortgage Approvals
”: shall have the meaning ascribed thereto in
Section 4.4.
“
First Mortgage Bonds
”: the first mortgage bonds issued, pursuant to
the Indentures, to and registered in the name of the Collateral Agent,
initially in the respective principal amounts and series set forth in Section
5.1(h).
“
FQ1
”, “
FQ2
“,
“
FQ3
”, and “
FQ4
”: when used with a numerical year designation,
means the first, second, third or fourth fiscal quarters, respectively, of such
fiscal year of the Borrower (e.g., FQ1 2004 means the first fiscal quarter of
the Borrower’s 2004 fiscal year, which ended March 31, 2004).
“
Funded Debt
”: with respect to any Person, all Indebtedness
of such Person of the types described in clauses (a) through (e) of the
definition of “Indebtedness” in this Section 1.1.
“
Funding Office
”: the office specified from time to time by the
Administrative Agent as its funding office by notice to the Borrower and the
Lenders.
“
GAAP
”: generally accepted accounting principles in
the United States of America as in effect from time to time.
“
Governmental Authority
”: any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, and any securities exchange.
“
Guarantee Obligation
”: as to any Person (the “
guaranteeing person
”),
any obligation, including a reimbursement, counterindemnity or similar
obligation, of the guaranteeing person that guarantees or in effect guarantees,
or which is given to induce the creation of a separate obligation by another
Person (including any bank under any letter of credit) that guarantees or in
effect guarantees any Indebtedness, leases, dividends or other obligations (the
“
primary obligations
”) of any other third Person (the “
primary
obligor
”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such
primary obligation or any Property constituting direct or indirect security
therefor, (ii) to advance or supply funds
(1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or
11
equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase Property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to
assure or hold harmless the owner of any such primary obligation against loss
in respect thereof;
provided
,
however
, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business.
The amount of any Guarantee Obligation of any guaranteeing person shall
be deemed to be the lower of (a) an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee Obligation
is made and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or determinable, in which
case the amount of such Guarantee Obligation shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith.
“
Hedge Agreements
”: all interest rate or currency swaps, caps or
collar agreements, foreign exchange agreements, or similar arrangements entered
into by the Borrower or its Subsidiaries providing for protection against
fluctuations in interest rates, currency exchange rates, or the exchange of
nominal interest obligations, either generally or under specific contingencies.
“
Indebtedness
”: of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of Property or
services (other than trade payables incurred in the ordinary course of such
Person’s business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such Property), other than any such
indebtedness arising solely in connection with the Borrower’s gas storage
arrangements as more particularly described on Schedule 1.1, (e) all Capital
Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under acceptance,
letter of credit, surety bond or similar facilities, (g) all obligations of
such Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock of such Person, (h) all Mandatory
Redeemable Stock of such Person, (i) all Guarantee Obligations of such
Person in respect of obligations of the kind referred to in clauses (a) through
(h) above, (j) all obligations of the kind referred to in clauses (a) through
(i) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on Property
(including, without limitation, accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such obligation and (k) for the purposes of Section 8(e)
only,
all obligations of such Person in respect of Hedge Agreements. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness expressly provide
that such Person is not liable therefor.
12
“
Indemnified Liabilities
”: as defined in Section 10.6.
“
Indemnitee
”: as defined in Section 10.6.
“
Indentures
”: collectively, the Montana First Mortgage
Indenture and the South Dakota First Mortgage Indenture.
“
Insolvency
”: with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
“
Insolvent
”: pertaining to a condition of Insolvency.
“
Intellectual Property
”: the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
“
Interest Payment Date
”: (a) as
to any Base Rate Loan, the last day of each March, June, September and December
to occur while such Loan is outstanding and the final maturity date of such
Loan, (b) as to any Eurodollar Loan having
an Interest Period of three months or shorter, the last day of such Interest
Period, (c) as to any Eurodollar Loan
having an Interest Period longer than three months, each day that is three
months, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period and (d) as to any Loan (other than any Revolving Credit Loan that is a
Base Rate Loan and any Swing Line Loan), the date of any repayment or
prepayment made in respect thereof.
“
Interest Period
”: as to any Eurodollar Loan, (a) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six or (with the consent of all
Lenders under the relevant Facility, as determined by such Lenders in their
sole discretion) nine or twelve months thereafter, as selected by the Borrower
in its notice of borrowing or notice of conversion, as the case may be, given
with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six or (with
the consent of all Lenders under the relevant Facility, as determined by such
Lenders in their sole discretion) nine or twelve months thereafter, as selected
by the Borrower by irrevocable notice to the Administrative Agent not later
than 11:00 A.M., New York City time, on the date that is three Business Days
prior to the last day of the then current Interest Period with respect thereto;
provided
that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
13
(2) the Borrower may
not select an Interest Period that would extend beyond the Revolving Credit
Termination Date or beyond the date final payment is due on the Term Loans, as
applicable; and
(3) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month at the end of such
Interest Period.
“
Investments
”: as defined in Section 7.7.
“
Issuing Lender
”: Deutsche Bank AG Cayman Islands Branch or any
affiliate thereof, or any Revolving Credit Lender or any affiliate thereof from
time to time designated by the Borrower as an Issuing Lender with the consent
of such Revolving Credit Lender and the Administrative Agent.
“
L/C Commitment
”: an amount equal to the Total Revolving Credit
Commitments.
“
L/C Fee Payment Date
”: the last day of each March, June, September
and December, commencing on December 31, 2004, and the last day of the
Revolving Credit Commitment Period.
“
L/C Obligations
”: at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired
amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
“
L/C Participants
”: with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the Issuing
Lender that issued such letter of Credit.
“
L/C Supportable
Obligations
”: payment obligations of
the Borrower and its Wholly Owned Subsidiaries and the Excluded Subsidiaries as
permitted pursuant to Section 4.16.
“
Lehman Entity
”: any
of Lehman Commercial Paper Inc. or any of its affiliates (including Syndicated
Loan Funding Trust).
“
Lender Addendum
”: with respect to any initial Lender, a Lender
Addendum, substantially in the form of Exhibit G, to be executed and delivered
by such Lender on the Closing Date as provided in Section 10.17.
“
Lender Default
”: (i) the refusal of a Lender to comply with
any of its obligations under this Agreement, (ii) a Lender having notified the
Administrative Agent and/or the Borrower that it does not intend to comply with
its obligations under this Agreement or (iii) the appointment of a receiver or
a conservator with respect to such Lender at the direction or the request of
any regulatory agency or authority.
14
“
Lenders
”: as defined in the preamble hereto.
“
Letters of Credit
”: as defined in Section 3.1(a).
“
Lien
”: any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge
or other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement and any capital lease having substantially the same economic effect
as any of the foregoing).
“
Loan
”: any loan made by any Lender pursuant to this
Agreement.
“
Loan Documents
”: collectively, this Agreement, the Security
Documents, the Applications and the Notes.
“
Majority Facility
Lenders
”: with respect to any
Facility, the holders (other than Defaulting Lenders ) of more than 50% of the
aggregate unpaid principal amount of the Term Loans or the Total Revolving
Extensions of Credit, as the case may be, outstanding under such Facility (or,
in the case of the Revolving Credit Facility, prior to any termination of the
Revolving Credit Commitments, the holders of more than 50% of the Total
Revolving Credit Commitments), in each case excluding the aggregate Term Loans
and Commitments of, and Revolving Extensions of Credit by, Defaulting Lenders.
“
Majority Revolving
Credit Facility Lenders
”: the
Majority Facility Lenders in respect of the Revolving Credit Facility.
“
Mandatory Redeemable
Stock
”: with respect to any Person,
any share of such Person’s Capital Stock, to the extent that it is (a)
redeemable, payable or required to be purchased or otherwise retired or
extinguished, or convertible into any Indebtedness or other liability,
obligation, covenant or duty of or binding upon, or any term or condition to be
observed by or binding upon such Person or any of its assets, (i) at a fixed or
determinable date, whether by operation of a sinking fund or otherwise, (ii) at
the option of any other Person or (iii) upon the occurrence of a condition not
solely within the control of such Person such as a redemption required to be
made utilizing future earnings, or (b) convertible into Capital Stock
which has the features set forth in clause (a).
“
Material Adverse Effect
”: a material adverse effect on (a) the
business, assets, property, operations, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, (b) the
validity or enforceability of this Agreement or any of the other Loan Documents
or either Indenture or the rights or remedies of the Agents or the Lenders
hereunder or thereunder (or the Trustee under an Indenture), (c) the
property (taken as a whole) subject to the Lien of an Indenture, or
(d) the perfection, priority or enforceability of the Lien of the Montana
First Mortgage Indenture, the South Dakota Indenture or any other Security
Document.
“
Materials of
Environmental Concern
”: any gasoline
or petroleum (including crude oil or any fraction thereof) or petroleum
products, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants, contaminants, radioactivity, and any other
15
substances or forces of any
kind, whether or not any such substance or force is defined as hazardous or
toxic under any Environmental Law, that is regulated pursuant to or could give
rise to liability under any Environmental Law.
“
Montana First Mortgage
Indenture
”: the Mortgage and Deed of
Trust dated October 1, 1945 from the Borrower (as successor to Montana Power)
to the trustees named therein, as supplemented and amended to the date hereof.
“
Montana Power
”: The Montana Power, L.L.C., a Montana limited
liability company, acquired by the Borrower on February 15, 2002.
“
Montana Utility Business
”: the regulated electric and natural gas assets
and businesses owned and operated by the Borrower in the State of Montana or
otherwise subject to the Lien of the Montana First Mortgage Indenture.
“
Moody’s
”: Moody’s Investor Service, Inc.
“
Multiemployer Plan
”: a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
“
Net Cash Proceeds
”: (a) in
connection with any Asset Sale or any Recovery Event, the proceeds thereof in
the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as
and when received) of such Asset Sale or Recovery Event, net of attorneys’
fees, accountants’ fees, investment banking and underwriting fees, amounts
required to be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset which is the subject of such Asset
Sale or Recovery Event (other than any Lien pursuant to a Security Document),
the net present value of any amounts required to be returned to rate payers in
the form of rate reductions or as otherwise required by any Governmental
Authority, and other fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements, but not taking into account any
net operating losses available to the Borrower); provided that “Net Cash
Proceeds” shall not include any proceeds to the extent such proceeds are (and
remain) subject to the Lien of an Indenture and (b) in connection with any issuance or sale of equity securities or
debt securities or instruments or the incurrence of loans, the cash proceeds
received from such issuance or incurrence, net of attorneys’ fees, investment
banking and underwriting fees, accountants’ fees, underwriting discounts and
commissions and other fees and expenses actually incurred in connection
therewith. For the avoidance of doubt,
solely for purposes of calculating “Net Cash Proceeds,” (x) any net cash
proceeds which were excluded as being subject to the Lien of an Indenture shall
become “Net Cash Proceeds” upon and to extent withdrawn from the Lien of such
Indenture, (y) with respect to the determination of whether amounts are
required to be applied to the repayment of Indebtedness, if the Borrower is
required to use any amount to prepay Indebtedness pursuant to the terms of any
Indebtedness (including without limitation the Senior Note Indenture) but has
the option, in lieu of prepaying (or offering to prepay) such Indebtedness, to
prepay other Indebtedness, then the Borrower shall be deemed to have exercised
such option to prepay the Loans (it being understood that the
16
application of Net Cash
Proceeds in accordance with the terms hereof shall not be limited by such
deemed exercise) and (z) any net cash proceeds which, pursuant to the terms of
such Indebtedness (including without limitation the Senior Note Indenture), are
required to be offered to the holders thereof as a prepayment of such
Indebtedness shall become “Net Cash Proceeds” upon and to the extent such
holders reject such offer.
“
Netexit
”: collectively, Netexit, Inc. (f/k/a Expanets,
Inc.), a Delaware corporation and its Subsidiaries.
“
Non-Excluded Taxes
”: as defined in Section 2.20(a).
“
Non-Recourse Debt
”: Indebtedness as to which the Borrower has no
direct or indirect liability whether as primary obligor, guarantor, surety,
provider of collateral security or through any other right or arrangement of
any nature (including any election by the holder of such indebtedness)
providing direct or indirect assurance of payment or performance of any such obligations
in whole or in part.
“
Non-U.S. Lender
”: as defined in Section 2.20(d).
“
Note
”: any promissory note evidencing any Loan.
“
Obligations
”: the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of the
Loans and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of the Borrower to the Administrative Agent or to any Lender,
whether direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document, the Letters of
Credit, or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without limitation,
all fees, charges and disbursements of counsel to the Administrative Agent or
to any Lender that are required to be paid by the Borrower pursuant hereto) or
otherwise.
“
Originators
” means
the Borrower and/or any of its Subsidiaries in their respective capacities as
parties to any Receivables Purchase Documents, as sellers or transferors of any
Receivables and Related Security in connection with a Permitted Receivables
Transfer.
“
Other Taxes
”: any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
“
Participant
”: as defined in Section 10.7(b).
“
Participation Amount
”: as defined in Section 3.4(b).
17
“
Payment Office
”: the office specified from time to time by the
Administrative Agent as its payment office by notice to the Borrower and the
Lenders.
“
PBGC
”: the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any successor).
“
Permitted Acquisition
”: any Acquisition made by the Borrower provided
that: (a) as of the date of such Acquisition, no Default or Event of Default
shall have occurred and be continuing or would result from such Acquisition or
from the incurrence or assumption of any Indebtedness in connection with such
Acquisition; (b) in the case of a merger, consolidation or Acquisition of
Capital Stock, prior to the date of such Acquisition, such Acquisition shall
have been approved by the board of directors and, if applicable, the
shareholders of the Person being acquired in connection with such Acquisition
and no claim or challenge has been asserted or threatened by any shareholder or
director of such Person which could reasonably be expected to have a material
adverse effect on such Acquisition or a Material Adverse Effect; (c) as of the
date of any such Acquisition, all material consents, authorizations, approvals,
filings and notices required in connection with such Acquisition shall have
been obtained or made (and remain in full force and effect); (d) any such
Acquisition is an Acquisition of the assets or Capital Stock of a Person
engaged in the regulated electric or natural gas utility business in the United
States; (e) the aggregate consideration (including cash consideration and the
fair value of any non-cash consideration and Indebtedness assumed) for such
Acquisition is not greater than the fair market value thereof; (f) after giving
effect to such Acquisition, the sum of cash on hand of the Borrower plus
aggregate Available Revolving Credit Commitments hereunder shall be at least
$50 million; and (g) without limiting the generality of the foregoing,
(i) if as of the date of any such Acquisition the Facilities shall not be
rated at least Baa3 (stable outlook) and BBB- (stable outlook) by Moody’s and
Standard & Poor’s, respectively, the Consolidated Interest Coverage Ratio
of the Borrower after giving effect to such Acquisition, calculated on a
pro
forma
basis as of the end of the quarter most recently ended prior to
the date of such Acquisition and for the four fiscal quarters then ending,
shall be equal to or better than the Consolidated Interest Coverage Ratio of
the Borrower prior to giving effect to such Acquisition for such period and
(ii) after giving effect to such Acquisition, the Borrower shall be in
compliance with the provisions of Section 7.1 (or, in the case of any Permitted
Acquisition consummated on or prior to March 31, 2005, in compliance with the
financial covenants applicable to FQ1 2005 (and thereafter) set forth in
Section 7.1), calculated on a
pro
forma
basis as of the end of
the quarter most recently ended prior to the date of such Acquisition and for
the four fiscal quarters then ending (and, if the aggregate consideration
(including cash consideration and the fair value of any non-cash consideration
and Indebtedness assumed) for such Acquisition exceeds $25 million, the Borrower
shall have delivered to the Administrative Agent a Compliance Certificate demonstrating
such
pro
forma
compliance);
provided
,
however
, that
any Acquisition by the Borrower or any of its Subsidiaries of all or a portion
of Colstrip shall be a Permitted Acquisition without regard to any of the
foregoing requirements other than as set forth in clause (a) and (c) of this
definition.
“
Permitted Receivables
Transfer
” means (i) a sale or other transfer by an Originator to a SPV
or any other Person of Receivables and Related Security for fair market value
and without recourse (except for limited recourse typical of such structured
finance transactions), and/or (ii) a sale or other transfer by an
Originator or a SPV to (a) purchasers of or other investors in such
Receivables and Related Security or (b) any other Person (including a
18
SPV) in a transaction in which
purchasers or other investors purchase or are otherwise transferred such
Receivables and Related Security in each case pursuant to and in accordance
with the terms of the Receivables Purchase Documents;
provided
, that
Receivables Facility Attributed Indebtedness incurred in connection with the
Receivables Purchase Documents does not exceed $70,000,000 in the aggregate at
any time.
“
Person
”: an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
“
Plan
”: at a particular time, any employee benefit
plan that is covered by ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.
“
Plan of Reorganization
”: as defined in the recitals hereto.
“
Pro Forma Balance Sheet
”: as defined in Section 4.1.
“
Property
”: any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
“
QF Liabilities
”: the balance sheet liabilities of the Borrower
arising under agreements existing on the date hereof between the Borrower and
any “qualifying cogeneration facility” as that term is defined in Section
3(18)(B) of the Federal Power Act.
“
Qualified Counterparty
”: with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a Lender.
“
Receivable(s)
”: all of the applicable Originator’s or SPV’s
presently existing and hereafter arising or acquired accounts, accounts
receivable, and all present and future rights of such Originator or SPV to
payment for goods sold or leased or for services rendered (except those evidenced
by instruments or chattel paper), whether or not they have been earned by
performance, and all rights in any merchandise or goods which any of the same
may represent, and all rights, title, security and guaranties with respect to
each of the foregoing, including, without limitation, any right of stoppage in
transit.
“
Receivables and Related
Security
”: the Receivables and the
related security and collections with respect thereto which are sold or
transferred by any Originator or SPV in connection with any Permitted
Receivables Transfer.
“
Receivables Facility
Attributed Indebtedness
”: the amount
of obligations outstanding under a receivables purchase facility on any date of
determination that would be characterized as principal if such facility were
structured as a secured lending transaction rather than as a purchase.
19
“
Receivables Purchase
Documents
”: any series of
receivables purchase or sale agreements generally consistent with terms
contained in comparable structured finance transactions pursuant to which an
Originator or Originators sell or transfer to SPVs all of their respective
right, title and interest in and to certain Receivables and Related Security
for further sale or transfer to other purchasers of or investors in such assets
(and the other documents, instruments and agreements executed in connection
therewith), as any such agreements may be amended, restated, supplemented or
otherwise modified from time to time, or any replacement or substitution
therefor.
“
Recovery Event
”: any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Borrower or any of its Subsidiaries.
“
Refunded Swing Line
Loans
”: as defined in Section 2.7.
“
Refunding Date
”: as defined in Section 2.7.
“
Register
”: as defined in Section 10.7(d).
“
Regulation U
”: Regulation U of the Board as in effect from
time to time.
“
Reimbursement Obligation
”: the obligation of the Borrower to reimburse
each Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of
Credit issued by such Issuing Lender.
“
Reinvestment Deferred
Amount
”: with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or
any of its Subsidiaries in connection therewith that are not applied to prepay
the Term Loans or the Revolving Credit Commitments pursuant to 2.12(b) as a
result of the delivery of a Reinvestment Notice.
“
Reinvestment Event
”: any Asset Sale or Recovery Event in respect
of which the Borrower has delivered a Reinvestment Notice.
“
Reinvestment
Notice
”: a written notice executed
by a Responsible Officer stating that no Default or Event of Default has
occurred and is continuing and that the Borrower (directly or, if the assets
which are the subject of the applicable Reinvestment Event were held by a
Subsidiary, indirectly through a Subsidiary) intends and expects to use all or
a specified portion of the Net Cash Proceeds of (i) a Recovery Event to acquire
or repair assets useful in its business, (ii) a Disposition permitted under
Section 7.5(k) to reinvest such amounts in the Montana Utility Business (if
such Disposition relates to assets under the Montana Indenture) or the South
Dakota Utility Business (if such Disposition relates to assets under the South
Dakota Indenture) or (iii) a Disposition permitted under Section 7.5(f), (g) or
(i) to reinvest such amounts in the Montana Utility Business or the South
Dakota Utility Business, to pay or prepay then existing Indebtedness or settle
then existing claims of the Borrower, or to pay regular quarterly cash
dividends in respect of the Borrower’s common stock, in accordance with Section
7.6(d).
20
“
Reinvestment Prepayment
Amount
”: with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less
any amount expended prior to the relevant Reinvestment Prepayment Date in
accordance with the Reinvestment Notice with respect thereto. If pursuant to clause (x) of the last
sentence of the definition of “Net Cash Proceeds,” any net cash proceeds
withdrawn from the Lien of an Indenture become “Net Cash Proceeds,” such
proceeds shall be deemed to be expended prior to the applicable Reinvestment
Prepayment Date if withdrawn from such Indenture on the basis of Property
Additions (as such term is defined in such Indenture) acquired within 365 of
such withdrawal (i) other than Property Additions made in the ordinary course
of business or (ii) specifically made for the purpose of obtaining such
withdrawal of net cash proceeds.
“
Reinvestment Prepayment
Date
”: with respect to any
Reinvestment Event, the earlier of (a) the date occurring one year after such
Reinvestment Event (or, if (i) the Borrower is not able to obtain all of the
consents or approvals of a Governmental Authority within such period determined
by the Borrower to be necessary to make such proposed reinvestment (despite
using commercially reasonable efforts to do so) and (ii) the terms of the
Senior Notes will not then or thereafter require any portion of such proceeds
to be used to prepay Indebtedness or offered as prepayment of the Senior Notes,
then upon the Administrative Agent’s receipt (at any time within such one year
period) of written notice from the Borrower to such effect (which notice shall
set forth in reasonable detail such consents and the efforts made to date to
obtain them), the date occurring 18 months after such Reinvestment Event) and
(b) the date on which the Borrower shall have determined not to, or shall have
otherwise ceased to, use all or any portion of the relevant Reinvestment
Deferred Amount in accordance with the Reinvestment Notice with respect
thereto. For purposes of calculating the
one year (or 18 month) period, the “Reinvestment Event” shall be deemed to have
occurred on the date such Net Cash Proceeds are received by the Borrower (by
way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise).
“
Related Fund
”: with respect to any Lender, any fund that (x)
invests in commercial loans and (y) is managed or advised by the same
investment advisor as such Lender, by such Lender or by an Affiliate of such
Lender.
“
Reorganization
”: with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
“
Reportable Event
”: any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. § 4043.
“
Required Lenders
”: at any time, the holders (other than
Defaulting Lenders) of more than 50% of (a) until the Closing Date, the Commitments
and (b) thereafter, the sum of (i) the aggregate unpaid principal amount of the
Term Loans then outstanding and (ii) the Total Revolving Credit Commitments
then in effect or, if the Revolving Credit Commitments have been terminated,
the Total Revolving Extensions of Credit then outstanding, in each case
excluding the aggregate Commitments of, and Revolving Extensions of Credit by,
Defaulting Lenders.
21
“
Required Prepayment
Lenders
”: the Majority Facility
Lenders in respect of each Facility.
“
Requirement of Law
”: as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person
or any of its Property is subject.
“
Responsible Officer
”: as to any Person, the chief executive
officer, president or chief financial officer of such Person, but in any event,
with respect to financial matters, the chief financial officer or treasurer of
such Person, or any other officer of such Person designated as a Responsible
Officer by any one of the foregoing.
“
Restricted Payments
”: as defined in Section 7.6.
“
Revolving Credit
Commitment
”: as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans and
participate in Swing Line Loans and Letters of Credit, in an aggregate
principal and/or face amount not to exceed the amount set forth under the
heading “Revolving Credit Commitment” opposite such Lender’s name on Schedule 1
to the Lender Addendum delivered by such Lender, or, as the case may be, in the
assignment and acceptance pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof. The original aggregate amount of the Total
Revolving Credit Commitments is $125,000,000.
“
Revolving Credit
Commitment Period
”: the period from
and including the Closing Date to the Revolving Credit Termination Date.
“
Revolving Credit
Facility
”: as defined in the
definition of “Facility” in this Section 1.1.
“
Revolving Credit First
Mortgage Bonds
”: as defined in
Section 5.1(h).
“
Revolving Credit Lender
”: each Lender that has a Revolving Credit
Commitment or that is the holder of Revolving Credit Loans.
“
Revolving Credit Loans
”: as defined in Section 2.4.
“
Revolving Credit Note
”: as defined in Section 2.8.
“
Revolving Credit
Percentage
”: as to any Revolving
Credit Lender at any time, the percentage which such Lender’s Revolving Credit
Commitment then constitutes of the Total Revolving Credit Commitments (or, at
any time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender’s
Revolving Extensions of Credit then outstanding constitutes of the Total
Revolving Extensions of Credit then outstanding).
“
Revolving Credit
Termination Date
”: the fifth
anniversary of the Closing Date.
22
“
Revolving Extensions of
Credit
”: as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding, (b)
such Lender’s Revolving Credit Percentage of the L/C Obligations then
outstanding and (c) such Lender’s Revolving Credit Percentage of the aggregate
principal amount of Swing Line Loans then outstanding.
“
SEC
”: the Securities and Exchange Commission (or
successors thereto or an analogous Governmental Authority).
“
SEC Reports
”: the publicly available (unredacted) portion
of all reports filed by the Borrower with the SEC on Form 10-K, Form 10-Q or
Form 8-K or any successor form.
“
Security Documents
”: the collective reference to the Bond Delivery
Agreement, the Supplemental Indentures and all other security documents
hereafter delivered to the Administrative Agent or the Collateral Agent granting
a Lien on any Property of any Person to secure the obligations and liabilities
of the Borrower under any Loan Document.
“
Senior Notes
”: the Borrower’s Senior Secured Notes, 5.875%
Series A due 2014 of the Borrower issued under the Senior Note Indenture
on the Closing Date and any Senior Secured Notes, 5.875% Exchange Series A
due 2014 registered under the Securities Act of 1933 and issued in exchange for
such notes as contemplated by a registration rights agreement executed and
delivered on the Closing Date.
“
Senior Note Indenture
”: the Indenture, dated as of November 1, 2004,
by the Borrower, as issuer, in favor of U.S. Bank National Association, as
trustee, as supplemented by that certain Supplemental Indenture, dated as of
November 1, 2004, by the Borrower in favor of U.S. Bank National Association.
“
Single Employer Plan
”: any Plan that is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
“
Solvent
”: with respect to any Person, as of any date of
determination, (a) the amount of the “present fair saleable value” of the
assets of such Person will, as of such date, exceed the amount of all “liabilities
of such Person, contingent or otherwise”, as of such date, as such quoted terms
are determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable
value of the assets of such Person will, as of such date, be greater than the
amount that will be required to pay the liability of such Person on its debts
as such debts become absolute and matured, (c) such Person will not have, as of
such date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt”
means liability on a “claim”, and (ii) “claim” means any (x) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or unsecured.
23
“
South Dakota First
Mortgage Indenture
”: the General
Mortgage Indenture and Deed of Trust dated as of August 1, 1993 between the
Borrower and The Chase Manhattan Bank, as trustee, as supplemented and amended
to the date hereof.
“
South Dakota Utility
Business
”: the regulated electric
and natural gas assets and businesses owned and operated by the Borrower in the
States of South Dakota and Nebraska and all of the Borrower’s other assets that
are subject to the Lien of the South Dakota First Mortgage Indenture (which
consists principally, as of the date hereof, of the shared ownership interests
in electric generation facilities located in the States of North Dakota and
Iowa).
“
Specified Hedge
Agreement
”: any Hedge Agreement
entered into by the Borrower and any Qualified Counterparty.
“
SPV
”: any special purpose entity established for
the purpose of purchasing receivables in connection with a receivables
securitization transaction permitted under the terms of this Agreement.
“
Standard & Poor’s
”: Standard & Poor’s Rating Group, a
division of The McGraw-Hill Companies, Inc.
“
Subsidiary
”: as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening of
a contingency) to elect a majority of the board of directors or other managers
of such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to
a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower;
provided
that in no event
shall any Excluded Subsidiary be deemed a Subsidiary of the Borrower.
“
Supplemental Indentures
”: collectively the supplemental indentures to
the Indentures pursuant to which, among other things, the First Mortgage Bonds
are issued. The Supplemental Indentures
are sometimes called, as applicable, the Montana Supplemental Indenture and the
South Dakota Supplemental Indenture herein.
“
Swing Line Commitment
”: the obligation of the Swing Line Lender to
make Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount
at any one time outstanding not to exceed $10,000,000.
“
Swing Line Lender
”: Lehman Commercial Paper Inc., in its capacity
as the lender of Swing Line Loans.
“
Swing Line Loans
”: as defined in Section 2.6.
“
Swing Line Note
”: as
defined in Section 2.8.
“
Swing Line Participation
Amount
”: as defined in Section 2.7.
24
“
Syndication Agent
”: as defined in the preamble hereto.
“
Term Loan Facility
”: as defined in the definition of “Facility” in
this Section 1.1.
“
Term Loan Lenders
”: each Lender that has a Term Loan Commitment
or is the holder of a Term Loan.
“
Term Loans
”: as defined in Section 2.1.
“
Term Note
”: as defined in Section 2.8(e).
“
Term Loan Commitment
”: as to any Lender, the obligation of such
Lender, if any, to make a Term Loan to the Borrower hereunder in a principal
amount not to exceed the amount set forth under the heading “Term Loan
Commitment” opposite such Lender’s name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original aggregate amount of the Term
Loan Commitments is $100,000,000.
“
Term Loan First Mortgage
Bonds
”: as defined in Section
5.1(h).
“
Term Loan Percentage
”: as to any Term Loan Lender at any time, the
percentage which such Lender’s Term Loan Commitment then constitutes of the
aggregate Term Loan Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender’s Term Loans
then outstanding constitutes of the aggregate principal amount of the Term
Loans then outstanding).
“
Total Revolving Credit
Commitments
”: at any time, the
aggregate amount of the Revolving Credit Commitments then in effect.
“
Total Revolving
Extensions of Credit
”: at any time,
the aggregate amount of the Revolving Extensions of Credit of the Revolving
Credit Lenders outstanding at such time.
“
Transferee
”: as defined in Section 10.15.
“
Type
”: as to any Loan, its nature as a Base Rate
Loan or a Eurodollar Loan.
“
Utility Business
”: the regulated electric and natural gas
utility business and operations of the Borrower and its Subsidiaries.
“
Wholly Owned Subsidiary
”: as to any Person, any other Person all of the
Capital Stock of which (other than directors’ qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries. For the avoidance of
doubt, no Excluded Subsidiary shall be deemed a Wholly Owned Subsidiary of the
Borrower for purposes hereof.
25
1.2
Other Definitional
Provisions
. (a)
Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan
Documents, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of
such terms.
(e) All calculations of financial ratios
set forth in Section 7.1 shall be calculated to the same number of decimal
places as the relevant ratios are expressed in and shall be rounded upward if
the number in the decimal place immediately following the last calculated
decimal place is five or greater. For
example, if the relevant ratio is to be calculated to the hundredth decimal
place and the calculation of the ratio is 5.126, the ratio will be rounded up
to 5.13.
(f) The words “include,” “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”. The word “or” shall not be exclusive. The word “will” shall be construed to have
the same meaning and effect as the word “shall”.
(g) Unless the context requires otherwise
(i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (ii) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, and (iii) the
words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
SECTION
2
. AMOUNT AND
TERMS OF COMMITMENTS
2.1
Term Loan Commitments
. Subject to the terms and conditions hereof,
the Term Loan Lenders severally agree to make term loans (each, a “
Term Loan
”)
to the Borrower on the Closing Date in an amount for each Term Loan Lender (as
requested by the Borrower in accordance with the terms hereof) up to but not
exceeding the amount of the Term Loan Commitment of such Lender. The Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.2 and 2.13.
26
2.2
Procedure for Term
Loan Borrowing
. The Borrower shall deliver to the Administrative
Agent a Borrowing Notice (which Borrowing Notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, one Business Day
prior to the anticipated Closing Date) requesting that the Term Loan Lenders
make the Term Loans on the Closing Date.
The Term Loans made on the Closing Date shall initially be Base Rate
Loans. Upon receipt of such Borrowing
Notice the Administrative Agent shall promptly notify each Term Loan Lender
thereof. Not later than 12:00 Noon, New
York City time, on the Closing Date each Term Loan Lender shall make available
to the Administrative Agent at the Funding Office an amount in immediately
available funds equal to the Term Loan or Term Loans to be made by such Lender. The Administrative Agent shall make available
to the Borrower the aggregate of the amounts made available to the
Administrative Agent by the Term Loan Lenders, in like funds as received by the
Administrative Agent.
2.3
Repayment of Term
Loans
. On the last day of each March, June,
September and December commencing on March 31, 2005, and continuing
through and including September 30, 2010, the Borrower shall make
quarterly principal payments on the Term Loans, each quarterly payment in an
amount equal to one quarter of one percent (0.25%) of the original aggregate
principal amount of the Term Loans. On
December 31, 2010, March 31, 2011 and June 30, 2011 the Borrower shall
make payments on the Term Loans, each in an amount equal to twenty-three and
one-half percent (23.5%) of the original aggregate principal amount of the Term
Loans. On November 1, 2011 the
Borrower shall repay the then outstanding aggregate principal amount of the
Term Loans, together with accrued and unpaid interest thereon as provided
herein.
2.4
Revolving Credit
Commitments
. (a)
Subject to the terms and conditions hereof, the Revolving Credit Lenders
severally agree to make revolving credit loans (“
Revolving Credit Loans
”)
to the Borrower from time to time during the Revolving Credit Commitment Period
in an aggregate principal amount at any one time outstanding for each Revolving
Credit Lender which, when added to such Lender’s Revolving Credit Percentage of
the sum of (i) the L/C Obligations then outstanding and (ii) the aggregate
principal amount of the Swing Line Loans then outstanding, does not exceed the
amount of such Lender’s Revolving Credit Commitment. During the Revolving Credit Commitment Period
the Borrower may use the Revolving Credit Commitments by borrowing, prepaying
the Revolving Credit Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. The Revolving Credit Loans may from time to
time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.5 and 2.13,
provided
that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Revolving Credit Termination Date.
(b) The Borrower shall repay all
outstanding Revolving Credit Loans on the Revolving Credit Termination Date.
2.5
Procedure for Revolving
Credit
Borrowing
. The Borrower may borrow
under the Revolving Credit Commitments on any Business Day during the Revolving
Credit Commitment Period,
provided
that the Borrower shall deliver to
the Administrative Agent a Borrowing Notice (which Borrowing Notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time,
(a) three Business Days prior to the requested Borrowing
27
Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans). Any Revolving
Credit Loans made on the Closing Date shall initially be Base Rate Loans. Except as provided in Section 2.7 or 3.5,
each borrowing of Revolving Credit Loans under the Revolving Credit Commitments
shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000
or a whole multiple of $100,000 in excess thereof (or, if the then aggregate
Available Revolving Credit Commitments are less than $1,000,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple
of $1,000,000 in excess thereof. Upon
receipt of any such Borrowing Notice from the Borrower, the Administrative
Agent shall promptly notify each Revolving Credit Lender thereof. Each Revolving Credit Lender will make its
Revolving Credit Percentage of the amount of each borrowing of Revolving Credit
Loans available to the Administrative Agent for the account of the Borrower at
the Funding Office prior to 12:00 Noon, New York City time, on the Borrowing
Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing
will then be made available to the Borrower by the Administrative Agent in like
funds as received by the Administrative Agent.
2.6
Swing Line Commitmen
t
. (a)
Subject to the terms and conditions hereof, the Swing Line Lender agrees
that, during the Revolving Credit Commitment Period, it will make available to
the Borrower in the form of swing line loans (“
Swing Line Loans
”) a
portion of the credit otherwise available to the Borrower under the Revolving
Credit Commitments;
provided
that (i) the aggregate principal amount of
Swing Line Loans outstanding at any time shall not exceed the Swing Line
Commitment then in effect (notwithstanding that the Swing Line Loans
outstanding at any time, when aggregated with the Swing Line Lender’s other
outstanding Revolving Credit Loans hereunder, may exceed the Swing Line
Commitment then in effect or such Swing Line Lender’s Revolving Credit
Commitment then in effect) and (ii) the Borrower shall not request, and the
Swing Line Lender shall not make, any Swing Line Loan if, after giving effect
to the making of such Swing Line Loan, the aggregate amount of the Available
Revolving Credit Commitments would be less than zero. During the Revolving Credit Commitment
Period, the Borrower may use the Swing Line Commitment by borrowing, repaying
and reborrowing, all in accordance with the terms and conditions hereof. Swing Line Loans shall be Base Rate Loans
only.
(b) The Borrower shall repay all
outstanding Swing Line Loans on the Revolving Credit Termination Date.
2.7
Procedure for Swing
Line Borrowing; Refunding
of Swing Line Loans
. (a) The Borrower may borrow under the Swing Line
Commitment on any Business Day during the Revolving Credit Commitment Period,
provided
,
the Borrower shall give the Swing Line Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swing Line Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the
requested Borrowing Date. Each borrowing
under the Swing Line Commitment shall be in an amount equal to $500,000 or a
whole multiple of $100,000 in excess thereof.
Not later than 3:00 P.M., New York City time, on the Borrowing Date
specified in the borrowing notice in respect of any Swing Line Loan, the Swing
Line Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the amount of such
Swing Line Loan. The Administrative
Agent shall make the proceeds of such Swing Line Loan
28
available to the Borrower on
such Borrowing Date in like funds as received by the Administrative Agent.
(b) The Swing Line Lender, at any time
and from time to time in its sole and absolute discretion may, on behalf of the
Borrower (which hereby irrevocably directs the Swing Line Lender to act on its
behalf), on one Business Day’s notice given by the Swing Line Lender no later
than 12:00 Noon, New York City time, request each Revolving Credit Lender to
make, and each Revolving Credit Lender hereby agrees to make, a Revolving
Credit Loan (which shall initially be a Base Rate Loan), in an amount equal to
such Revolving Credit Lender’s Revolving Credit Percentage of the aggregate
amount of the Swing Line Loans (the “
Refunded Swing Line Loans
”)
outstanding on the date of such notice, to repay the Swing Line Lender. Each Revolving Credit Lender shall make the
amount of such Revolving Credit Loan available to the Administrative Agent at
the Funding Office in immediately available funds, not later than 10:00 A.M.,
New York City time, one Business Day after the date of such notice. The proceeds of such Revolving Credit Loans
shall be made immediately available by the Administrative Agent to the Swing
Line Lender for application by the Swing Line Lender to the repayment of the
Refunded Swing Line Loans.
(c) If prior to the time a Revolving
Credit Loan would have otherwise been made pursuant to Section 2.7(b), one of
the events described in Section 8(f) shall have occurred and be continuing with
respect to the Borrower, or if for any other reason, as determined by the Swing
Line Lender in its sole discretion, Revolving Credit Loans may not be made as
contemplated by Section 2.7(b), each Revolving Credit Lender shall, on the date
such Revolving Credit Loan was to have been made pursuant to the notice
referred to in Section 2.7(b) (the “
Refunding Date
”), purchase for cash
an undivided participating interest in the then outstanding Swing Line Loans by
paying to the Swing Line Lender an amount (the “
Swing Line Participation
Amount
”) equal to (i) such Revolving Credit Lender’s Revolving Credit
Percentage
times
(ii) the sum of the aggregate principal amount of Swing
Line Loans then outstanding which were to have been repaid with such Revolving
Credit Loans.
(d) Whenever, at any time after the Swing
Line Lender has received from any Revolving Credit Lender such Lender’s Swing
Line Participation Amount, the Swing Line Lender receives any payment on
account of the Swing Line Loans, the Swing Line Lender will distribute to such
Lender its Swing Line Participation Amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender’s
participating interest was outstanding and funded and, in the case of principal
and interest payments, to reflect such Lender’s
pro
rata
portion
of such payment if such payment is not sufficient to pay the principal of and
interest on all Swing Line Loans then due);
provided
,
however
,
that in the event that such payment received by the Swing Line Lender is
required to be returned, such Revolving Credit Lender will return to the Swing
Line Lender any portion thereof previously distributed to it by the Swing Line
Lender.
(e) Each Revolving Credit Lender’s
obligation to make the Loans referred to in Section 2.7(b) and to purchase
participating interests pursuant to Section 2.7(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any setoff, counterclaim, recoupment, defense or other right
which such Revolving Credit Lender or the Borrower may have against the Swing
Line Lender, the Borrower or any
29
other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 5; (iii) any adverse change in the condition (financial or otherwise)
of the Borrower; (iv) any breach of this Agreement or any other Loan Document
by the Borrower, or any other Revolving Credit Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
2.8
Repayment of Loans
; Evidence of Debt
. (a)
The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate Revolving Credit Lender
or Term Loan Lender, as the case may be, (i) the then unpaid principal amount
of each Revolving Credit Loan of such Revolving Credit Lender on the Revolving
Credit Termination Date (or on such earlier date on which the Loans become due
and payable pursuant to Section 8), (ii) the then unpaid principal amount of
each Swing Line Loan of such Swing Line Lender on the Revolving Credit
Termination Date (or on such earlier date on which the Loans become due and
payable pursuant to Section 8) and (iii) the principal amount of each Term Loan
of such Term Loan Lender in installments according to the amortization schedule
set forth in Section 2.3 (or on such earlier date on which the Loans become due
and payable pursuant to Section 8). The
Borrower hereby further agrees to pay interest on the unpaid principal amount
of the Loans from time to time outstanding from the date hereof until payment
in full thereof at the rates per annum, and on the dates, set forth in Section
2.15.
(b) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent, on behalf
of the Borrower, shall maintain the Register pursuant to Section 10.7(d), and a
subaccount therein for each Lender, in which shall be recorded (i) the amount
of each Loan made hereunder and any Note evidencing such Loan, the Type of such
Loan and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) both the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each Lender’s share
thereof.
(d) The entries made in the Register and
the accounts of each Lender maintained pursuant to Section 2.8(b) shall, to the
extent permitted by applicable law, be
prima
facie
evidence of
the existence and amounts of the obligations of the Borrower therein recorded;
provided
,
however
, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to the Borrower by such Lender in accordance with the
terms of this Agreement.
(e) The Borrower agrees that, upon its
receipt of notice of the request to the Administrative Agent by any Lender, the
Borrower will promptly execute and deliver to such Lender a promissory note of
the Borrower evidencing any Term Loans, Revolving Credit Loans or Swing Line
Loans, as the case may be, of such Lender, substantially in the forms of
Exhibit D-1, D-2 or D-3, respectively (a “
Term Note
”, “
Revolving
Credit Note
” or “
Swing Line Note
”,
30
respectively), with appropriate
insertions as to date and then outstanding principal amount;
provided
,
that delivery of Notes shall not be a condition precedent to the occurrence of
the Closing Date or the making of the Loans or issuance of Letters of Credit on
the Closing Date.
2.9
Commitment Fees
, etc
. (a)
The Borrower agrees to pay to the Administrative Agent for the account
of each Revolving Credit Lender a commitment fee for the period from and
including the Closing Date to the last day of the Revolving Credit Commitment
Period, computed at the Commitment Fee Rate on the average daily amount of the
Available Revolving Credit Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Revolving Credit Termination
Date, commencing on the first of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the
Syndication Agent the fees in the amounts and on the dates previously agreed to
in the Fee Letter.
(c) The Borrower agrees to pay to the
Administrative Agent the fees in the amounts and on the dates agreed to in the
Fee Letter (or otherwise from time to time agreed to in writing by the Borrower
and the Administrative Agent).
2.10
Termination or Reduction
of Revolving
Credit Commitments
. The Borrower
shall have the right, upon not less than three Business Days’ notice to the
Administrative Agent, without premium or penalty, to terminate the Revolving
Credit Commitments or, from time to time, to reduce the aggregate amount of the
Revolving Credit Commitments;
provided
that no such termination or
reduction of Revolving Credit Commitments shall be permitted if, after giving
effect thereto and to any prepayments of the Revolving Credit Loans and Swing
Line Loans made on the effective date thereof, the Total Revolving Extensions
of Credit would exceed the Total Revolving Credit Commitments. Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently
the Revolving Credit Commitments then in effect.
2.11
Optional Prepayments
. The Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty (but
including breakage costs, if any, pursuant to Section 2.21), upon irrevocable
notice delivered to the Administrative Agent no later than 11:00 A.M., New York
City time, three Business Days prior thereto in the case of Eurodollar Loans
and no later than 11:00 A.M., New York City time, one Business Day prior
thereto in the case of Base Rate Loans, which notice shall specify the date and
amount of such prepayment, whether such prepayment is of Term Loans or
Revolving Credit Loans, and whether such prepayment is of Eurodollar Loans or
Base Rate Loans;
provided
, that (i) if a Eurodollar Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto, the
Borrower shall also pay any amounts owing pursuant to Section 2.21 and (ii) no
prior notice is required for the prepayment of Swing Line Loans. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with (except in the case of Revolving Credit Loans that are
Base Rate Loans and Swing Line Loans) accrued interest to such date on the
amount prepaid. Partial prepayments of
Term Loans and Revolving Credit Loans shall be in an aggregate principal amount
of $1,000,000 or a
31
whole multiple thereof. Partial prepayments of Swing Line Loans shall
be in an aggregate principal amount of $100,000 or a whole multiple thereof.
2.12
Mandatory Prepayments
and Commitment
Reductions
. (a) Unless the Required Prepayment Lenders shall
otherwise agree, if any Indebtedness shall be incurred by the Borrower or any
of its Subsidiaries (excluding any Indebtedness incurred in accordance with
Section 7.2), then on the date of such incurrence, the Term Loans shall be
prepaid, and/or the outstanding Revolving Credit Loans shall be repaid, by an
amount equal to the amount of the Net Cash Proceeds of such incurrence, as set
forth in Section 2.12(d). The provisions
of this Section do not constitute a consent to the incurrence of any
Indebtedness by the Borrower or any of its Subsidiaries.
(b) Unless the Required Prepayment Lenders
shall otherwise agree, if the Borrower or any of its Subsidiaries shall receive
Net Cash Proceeds from any Asset Sale or Recovery Event then on the fifth
Business Day after the date of receipt by the Borrower or such Subsidiary of
such Net Cash Proceeds unless a Reinvestment Notice shall be delivered in
respect thereof on or prior to such date, the Term Loans shall be prepaid,
and/or the outstanding Revolving Credit Loans shall be prepaid, by an amount
equal to the amount of such Net Cash Proceeds, as set forth in Section 2.12(d);
provided
, that, notwithstanding the foregoing, on each Reinvestment
Prepayment Date the Term Loans shall be prepaid, and/or the outstanding
Revolving Credit Loans shall be prepaid, by an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Reinvestment Event, as set forth
in Section 2.12(d). The provisions of
this Section do not constitute a consent to the consummation of any Disposition
not permitted by Section 7.5.
(c) Unless the Required Prepayment
Lenders shall otherwise agree, if on any date the Collateral Agent (or
Borrower) shall receive any proceeds of principal payments (other than payments
deemed made thereunder as a result of actual payments made with respect to the
Facilities) made on any First Mortgage Bonds, then on the date of such receipt,
the Term Loans shall be prepaid, and/or the outstanding Revolving Credit Loans
shall be prepaid, by an amount equal to the amount of such proceeds, as set
forth in Section 2.12(d).
(d) Amounts to be applied in connection
with prepayments made pursuant to this Section shall be applied,
first
,
to the prepayment of the Term Loans and,
second
, to repay any
outstanding Revolving Credit Loans (without reducing the Revolving Credit
Commitments).
2.13
Conversion and Continuation
Options
. (a) The Borrower may elect from time to time to
convert Eurodollar Loans to Base Rate Loans by giving the Administrative Agent
at least two Business Days’ prior irrevocable notice of such election,
provided
that any such conversion of Eurodollar Loans may be made only on the last day
of an Interest Period with respect thereto.
The Borrower may elect from time to time to convert Base Rate Loans to
Eurodollar Loans by giving the Administrative Agent irrevocable notice of such
election no later than 12:00 noon, New York City time, three Business Days
prior thereto (which notice shall specify the length of the initial Interest
Period therefor),
provided
that no Base Rate Loan under a particular
Facility may be converted into a Eurodollar Loan (i) when any Event of Default
has occurred and is continuing and the Administrative Agent has, or the
Majority Facility Lenders in respect of such Facility have, determined in its
or their sole discretion not to permit such
32
conversions or (ii) after the
date that is one month prior to the final scheduled termination or maturity
date of such Facility. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) The Borrower may elect to continue
any Eurodollar Loan as such upon the expiration of the then current Interest
Period with respect thereto by giving irrevocable notice to the Administrative
Agent, in accordance with the applicable provisions of the term “Interest
Period” set forth in Section 1.1, of the length of the next Interest Period to
be applicable to such Loan,
provided
that no Eurodollar Loan under a
particular Facility may be continued as such (i) when any Event of Default has
occurred and is continuing and the Administrative Agent has, or the Majority
Facility Lenders in respect of such Facility have, determined in its or their
sole discretion not to permit such continuations or (ii) after the date that is
one month prior to the final scheduled termination or maturity date of such
Facility, and
provided
,
further
, that if the Borrower shall fail
to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso, such Loans
shall be converted automatically to Base Rate Loans on the last day of such
then expiring Interest Period. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
2.14
Minimum Amounts and Maximum
Number
of Eurodollar Tranches
.
Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans and all selections of Interest Periods shall be in such amounts and be
made pursuant to such elections so that, (a) after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar
Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and (b) no more than ten Eurodollar Tranches shall be
outstanding at any one time.
2.15
Interest Rates
and Payment Dates
. (a)
Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day
plus
the Applicable Margin with
respect to Eurodollar Loans in effect for such day.
(b) Each Base Rate Loan shall bear
interest for each day on which it is outstanding at a rate per annum equal to
the Base Rate in effect for such day
plus
the Applicable Margin with
respect to Base Rate Loans in effect for such day.
(c) (i) If all or a portion of the
principal amount of any Loan or Reimbursement Obligation shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), all
outstanding Loans and Reimbursement Obligations (whether or not overdue) (to
the extent legally permitted) shall bear interest at a rate per annum that is
equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section
plus
2% or (y) in the case of Reimbursement Obligations, the rate applicable to Base
Rate Loans under the Revolving Credit Facility
plus
2%, and (ii) if all
or a portion of any interest payable on any Loan or Reimbursement Obligation or
any commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then
applicable to Base Rate Loans under the relevant Facility
plus
33
2% (or, in the case of any such
other amounts that do not relate to a particular Facility, the rate then
applicable to Base Rate Loans under the Revolving Credit Facility
plus
2%), in each case, with respect to clauses (i) and (ii) above, from the date of
such non-payment until such amount is paid in full (after as well as before
judgment).
(d) Interest shall be payable in arrears
on each Interest Payment Date,
provided
that interest accruing pursuant
to paragraph (c) of this Section shall be payable from time to time on demand.
2.16
Computation
of Interest and Fees
. (a) Interest, fees and commissions payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to Base Rate Loans on which
interest is calculated on the basis of the Prime Rate, the interest thereon
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest
rate by the Administrative Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Borrower and the Lenders in the absence
of manifest error. The Administrative
Agent shall, at the request of the Borrower, deliver to the Borrower a
statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.15(a).
2.17
Inability to Determine
Interest Rate
. If prior to the first day of any Interest
Period:
(a) the
Administrative Agent shall have reasonably determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the
Administrative Agent shall have received notice from the Majority Facility
Lenders in respect of the relevant Facility that the Eurodollar Rate determined
or to be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such Lenders) of
making or maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or
telephonic notice thereof to the Borrower and the relevant Lenders as soon as
practicable thereafter. If such notice
is given (x) any Eurodollar Loans under the relevant Facility requested to be
made on the first day of such Interest Period shall be made as Base Rate Loans,
(y) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
Base Rate Loans and (z) any outstanding Eurodollar Loans under the relevant
Facility shall be
34
converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to
convert Loans under the relevant Facility to Eurodollar Loans.
2.18
Pro Rata Treatment
and Payments
.
(a) Each borrowing by the Borrower from
the Lenders hereunder, each payment by the Borrower on account of any
commitment fee or Letter of Credit fee, and any reduction of the Commitments of
the Lenders, shall be made
pro
rata
according to the respective
Term Loan Percentages or Revolving Credit Percentages, as the case may be, of
the relevant Lenders. Each payment of
interest in respect of the Loans and each payment in respect of fees payable
hereunder shall be applied to the amounts of such obligations owing to the
applicable Lenders
pro
rata
according to the respective amounts
then due and owing to the applicable Lenders.
(b) Each payment on account of principal
of the Term Loans outstanding under the Term Loan Facility shall be allocated
among the Term Loan Lenders holding such Term Loans
pro
rata
based on the principal amount of such Term Loans held by such Term Loan
Lenders, and shall be applied to the installments of such Term Loans (i) in
order of maturity for the next four installments and (ii) thereafter ratably
over the remaining installments. Amounts
prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each
prepayment) by the Borrower on account of principal of the Revolving Credit
Loans shall be made
pro
rata
according to the respective
outstanding principal amounts of the Revolving Credit Loans then held by the
Revolving Credit Lenders. Each payment
in respect of Reimbursement Obligations in respect of any Letter of Credit
shall be made to the Issuing Lender that issued such Letter of Credit. Each payment by the Borrower on account of
principal of Swing Line Loans shall be made to the Swing Line Lender (to be
applied, if applicable, as provided in Section 2.7(d)).
(d) The application of any payment of
Loans under any Facility (including optional and mandatory prepayments) shall
be made,
first
, to Base Rate Loans under such Facility and,
second
,
to Eurodollar Loans under such Facility.
Each payment of the Loans (except in the case of Swing Line Loans and
Revolving Credit Loans that are Base Rate Loans) shall be accompanied by
accrued interest to the date of such payment on the amount paid.
(e) All payments (including prepayments)
to be made by the Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof
to the Administrative Agent, for the account of the relevant Lenders, at the
Payment Office, in Dollars and in immediately available funds. Any payment made by the Borrower after 12:00
Noon, New York City time, on any Business Day shall be deemed to have been on
the next following Business Day. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any
payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be made
on the
35
immediately preceding Business
Day. In the case of any extension of any
payment of principal pursuant to the preceding two sentences, interest thereon
shall be payable at the then applicable rate during such extension.
(f) Unless the Administrative Agent
shall have been notified in writing by any Lender prior to a borrowing that
such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the greater of (i) the Federal Funds
Effective Rate and (ii) a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, for the
period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of
the Administrative Agent submitted to any Lender with respect to any amounts
owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lender’s share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days after such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to Base Rate Loans under the relevant Facility, on demand,
from the Borrower.
(g) Unless the Administrative Agent shall
have been notified in writing by the Borrower prior to the date of any payment
due to be made by the Borrower hereunder that the Borrower will not make such
payment to the Administrative Agent, the Administrative Agent may assume that
the Borrower is making such payment, and the Administrative Agent may, but
shall not be required to, in reliance upon such assumption, make available to
the Lenders their respective
pro
rata
shares of a corresponding
amount. If such payment is not made to
the Administrative Agent by the Borrower within three Business Days after such
due date, the Administrative Agent shall be entitled to recover, on demand, from
each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights
of the Administrative Agent or any Lender against the Borrower.
(h) Upon receipt by the Administrative
Agent of payments on behalf of Lenders, the Administrative Agent shall promptly
distribute such payments to the Lender or Lenders entitled thereto, in like
funds as received by the Administrative Agent.
Notwithstanding the foregoing, if the Administrative Agent receives any
payment (whether voluntarily or involuntarily, pursuant to events or
proceedings of the nature referred to in Section 8(f), or otherwise) (the
amount of such payment, the “
Payment Amount
”) for the account of any
Lender (whether in such Lender’s capacity as a Term Loan Lender, Revolving
Credit Lender or L/C Participant), and at the time of such receipt such Lender,
in its capacity as L/C Participant, is in default in any of its obligations
pursuant to Section 3.4(a) (the amount of such obligations in default, the “
L/C
Participation Defaulted Amount
”), the Administrative Agent may withhold
from the Payment Amount an amount up to the L/C Participation Defaulted Amount,
and apply the amount so withheld toward payment to the relevant Issuing Lender
of the L/C Participation
36
Defaulted Amount or, if
applicable, toward reimbursement of any other Person that has previously reimbursed
such Issuing Lender for the L/C Participation Defaulted Amount.
2.19
Requirements of Law
. (a) If
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax
of any kind whatsoever with respect to this Agreement, any Letter of Credit,
any Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by Section 2.20 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold
applicable any reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Lender that is not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase
the cost to such Lender, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining Eurodollar Loans or
issuing or participating in Letters of Credit, or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, the Borrower
shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section, it shall
promptly notify the Borrower (with a copy to the Administrative Agent) of the
event by reason of which it has become so entitled.
(b) If any Lender shall have reasonably
determined that the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof or
compliance by such Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the
force of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such Lender’s or
such corporation’s capital as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or such corporation’s
policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefor, the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such corporation for such reduction;
provided
that the Borrower shall not be required to compensate a Lender pursuant to this
paragraph for any amounts incurred more than six months prior to the date that
such Lender notifies the Borrower of such Lender’s intention to claim
compensation therefor; and
provided
further
that, if the
37
circumstances giving rise to
such claim have a retroactive effect, then such six-month period shall be
extended to include the period of such retroactive effect.
(c) A certificate as to any additional
amounts payable pursuant to this Section (and setting forth calculations in
reasonable detail demonstrating the basis therefor) submitted by any Lender to
the Borrower (with a copy to the Administrative Agent) shall be conclusive in
the absence of manifest error. The
obligations of the Borrower pursuant to this Section shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.20
Taxes
. (a)
All payments made by the Borrower under this Agreement shall be made
free and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding net
income taxes and franchise taxes (imposed in lieu of net income taxes) imposed
on any Agent or any Lender as a result of a present or former connection
between such Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from such
Agent’s or such Lender’s having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings (“
Non-Excluded Taxes
”) or any Other Taxes are required to
be withheld from any amounts payable to any Agent or any Lender hereunder, the
amounts so payable to such Agent or such Lender shall be increased to the
extent necessary to yield to such Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement;
provided
,
however
, that the Borrower shall not be required to increase any such
amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that
are attributable to such Lender’s failure to comply with the requirements of
paragraph (d) or (e) of this Section or (ii) that are United States withholding
taxes imposed on amounts payable to such Lender immediately prior to the time
such Lender becomes a party to this Agreement, except to the extent that such
Lender’s assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph (a).
(b) In addition, the Borrower shall pay
any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) Whenever any Non-Excluded Taxes or
Other Taxes are payable by the Borrower, as promptly as possible thereafter the
Borrower shall send to the Administrative Agent for the account of the relevant
Agent or Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agents and the Lenders
for any incremental taxes, interest or penalties that may become payable by any
Agent or any Lender as
38
a result of any such
failure. The agreements in this Section
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is
not a “U.S. Person” as defined in Section 7701(a)(30) of the Code (a “
Non-U.S.
Lender
”) shall deliver to the Borrower and the Administrative Agent (or, in
the case of a Participant, to the Lender from which the related participation
shall have been purchased) two duly completed copies of either U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S.
Lender claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a
duly completed statement substantially in the form of Exhibit F and a Form
W-8BEN, or any subsequent versions thereof or successors thereto properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S.
Lender on or before the date it becomes a party to this Agreement (or, in the
case of any Participant, on or before the date such Participant purchases the
related participation). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an
exemption from or reduction of non-U.S. withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or reasonably requested by the Borrower,
such properly completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding or at a reduced
rate,
provided
that such Lender is legally entitled to complete, execute
and deliver such documentation and in such Lender’s reasonable judgment such
completion, execution or submission would not materially prejudice the legal
position of such Lender.
2.21
Indemnity
. The Borrower agrees to indemnify each Lender
for, and to hold each Lender harmless from, any loss or expense that such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans
after the Borrower has given a notice requesting the same in accordance with
the provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment or conversion of
Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification
may include an amount equal to the excess, if any, of (i) the amount of
interest that would have accrued on the amount so prepaid, or not so borrowed,
converted or continued, for the period from the date of such prepayment or of
such failure to borrow, convert or continue to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or continue, the
Interest
39
Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any)
over
(ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank Eurodollar market. A certificate as to any amounts payable
pursuant to this Section (and setting forth calculations in reasonable detail
demonstrating the basis therefor) submitted to the Borrower by any Lender shall
be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
2.22
Illegality
. Notwithstanding any other provision herein,
if after the Closing Date the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof shall make it unlawful for
any Lender to make or maintain Eurodollar Loans as contemplated by this
Agreement, (a) the commitment of such Lender hereunder to make Eurodollar
Loans, continue Eurodollar Loans as such and convert Base Rate Loans to
Eurodollar Loans shall forthwith be suspended until such condition shall cease
to exist and (b) such Lender’s Loans then outstanding as Eurodollar Loans, if
any, shall be converted automatically to Base Rate Loans on the respective last
days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law.
If any such conversion of a Eurodollar Loan occurs on a day which is not
the last day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to Section 2.21.
2.23
Change of Lending Office
. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.19, 2.20(a) or 2.22 with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Loans affected by such event with the object of avoiding the consequences of
such event;
provided
, that such designation is made on terms that, in
the sole judgment of such Lender, cause such Lender and its lending office(s)
to suffer no economic, legal or regulatory disadvantage, and
provided
,
further
,
that nothing in this Section shall affect or postpone any of the obligations of
the Borrower or the rights of any Lender pursuant to Section 2.19, 2.20(a) or
2.22.
2.24
Replacement of Lenders
under Certain
Circumstances
. The Borrower shall be
permitted to replace with a replacement financial institution any Lender that
(a) requests reimbursement for amounts owing pursuant to Section 2.19 or 2.20
or gives a notice of illegality pursuant to Section 2.22, (b) defaults in its
obligation to make Loans hereunder or (c) refuses to consent to any amendment,
waiver or other modification of any Loan Document requested by the Borrower
that requires the consent of all Lenders and such amendment, waiver or other
modification is consented to by the Required Lenders;
provided
that (i)
such replacement does not conflict with any Requirement of Law, (ii) no Event
of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall have taken
no action under Section 2.23 so as to eliminate the continued need for payment
of amounts owing pursuant to Section 2.19 or 2.20 or to eliminate the
illegality referred to in such notice of illegality given pursuant to Section
2.22, (iv) the replacement financial institution shall purchase, at par, all
Loans and other amounts owing to such replaced Lender on or prior to the date
of replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.21
40
(as though Section 2.21 were
applicable) if any Eurodollar Loan owing to such replaced Lender shall be purchased
other than on the last day of the Interest Period relating thereto, (vi) the
replacement financial institution, if not already a Lender, shall be reasonably
satisfactory to the Administrative Agent, (vii) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
10.7 (
provided
that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) the Borrower shall
pay all additional amounts (if any) required pursuant to Section 2.19 or 2.20,
as the case may be, in respect of any period prior to the date on which such
replacement shall be consummated, and (ix) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
3.1
L/C Commitment
.
(a) Subject to the terms and
conditions hereof, each Issuing Lender, in reliance on the agreements of the
other Revolving Credit Lenders set forth in Section 3.4, agrees to issue sight
letters of credit on a standby basis (the “
Letters of Credit
”) in
support of the L/C Supportable Obligations for the account of the Borrower on
any Business Day during the Revolving Credit Commitment Period in such form as
may be approved from time to time by such Issuing Lender;
provided
, that
no Issuing Lender shall have any obligation to issue any Letter of Credit if,
after giving effect to such issuance, (i) the L/C Obligations would exceed the
L/C Commitment or (ii) the aggregate amount of the Available Revolving Credit
Commitments would be less than zero.
Notwithstanding the foregoing, no Issuing Lender shall have any
obligation to issue any Letter of Credit on any date that is later than seven
Business Days prior to the Revolving Credit Termination Date. Each Letter of Credit shall (i) be
denominated in Dollars and (ii) expire no later than the earlier of (x) the
first anniversary of its date of issuance and (y) the date which is five
Business Days prior to the Revolving Credit Termination Date;
provided
that any Letter of Credit may provide for the extension thereof for up to
additional one year periods (which shall in no event extend beyond the date
referred to in clause (y) above).
(b) No Issuing Lender shall at any time
be obligated to issue any Letter of Credit hereunder if (i) there shall have
occurred and be continuing a Default or Event of Default or a Lender Default
shall exist or (ii) such issuance would conflict with, or cause such Issuing
Lender or any L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.
3.2
Procedure for Issuance
of Letter of
Credit
. The Borrower may from time
to time request that an Issuing Lender issue a Letter of Credit by delivering to
such Issuing Lender (with a copy to the Administrative Agent) a Letter of
Credit Request in the form of Exhibit I, attached hereto, accompanied by such
other certificates, documents and other papers and other information as such
Issuing Lender may request. If the
Issuing Lender shall so reasonably request, each Letter of Credit shall be
accompanied by an Application. Upon
receipt of any Letter of Credit Request, an Issuing Lender will process such
request in accordance with its customary procedures. The Issuing Lender, upon determining that it
has received an acceptable Letter of Credit Request and that the terms and
conditions of the requested Letter of Credit are acceptable to it, shall issue
the Letter of Credit (but in no event shall any Issuing Lender be required to
issue any Letter of Credit earlier than three Business Days after its receipt
41
of a Letter of Credit
Request). The original of any Letter of
Credit shall be delivered to the beneficiary thereof or as otherwise agreed to
by the Borrower and the Issuing Lender.
Promptly after the issuance or amendment of a Letter of Credit, the
Issuing Lender shall promptly notify the Administrative Agent and the Borrower,
in writing, of such issuance or amendment and such notice shall be accompanied
by a copy of such issuance or amendment.
Upon receipt of such notice, the Administrative Agent shall notify each
L/C Participant of such issuance or amendment, and if so requested by an L/C
Participant, the Administrative Agent shall provide such L/C Participant with
copies of such issuance or amendment.
3.3
Fees and Other Charges
. (a)
The Borrower will pay a fee to the Administrative Agent, for the ratable
benefit of the Revolving Credit Lenders, on the daily aggregate drawable amount
of all outstanding Letters of Credit at a per annum rate equal to the
Applicable Margin then in effect with respect to Eurodollar Loans under the
Revolving Credit Facility, shared ratably among the Revolving Credit Lenders in
accordance with their respective Revolving Credit Percentages and payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date. In addition, the Borrower shall pay to the
relevant Issuing Lender for its own account a fronting fee on the aggregate
drawable amount of all outstanding Letters of Credit issued by it of the
greater of 1/8 of 1% per annum and $500 per annum, payable quarterly in arrears
on each L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees,
the Borrower shall pay or reimburse each Issuing Lender for such reasonable,
normal and customary costs and expenses as are incurred or charged by such
Issuing Lender in issuing, effecting payment under, amending or otherwise
administering any Letter of Credit.
3.4
L/C Participations
.
(a)
Each Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce each Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from each Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant’s own account
and risk, an undivided interest equal to such L/C Participant’s Revolving
Credit Percentage of each Issuing Lender’s obligations and rights under each
Letter of Credit issued by such Issuing Lender hereunder and the amount of each
draft paid by such Issuing Lender thereunder.
Each L/C Participant unconditionally and irrevocably agrees with each
Issuing Lender that, if a draft is paid under any Letter of Credit issued by
such Issuing Lender for which such Issuing Lender is not reimbursed in full by
the Borrower in accordance with the terms of this Agreement, such L/C
Participant shall pay to the Administrative Agent for the account of such
Issuing Lender upon demand at the Funding Office (and thereafter the
Administrative Agent shall promptly pay to such Issuing Lender) an amount equal
to such L/C Participant’s Revolving Credit Percentage of the amount of such
draft, or any part thereof, that is not so reimbursed. Each L/C Participant’s obligation to pay such
amount shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such L/C Participant may have against the Issuing Lender, the
Borrower or any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in Section 5, (iii) any adverse change in the
condition (financial or otherwise) of the Borrower, (iv) any breach of this
Agreement or any other Loan Document by the Borrower or any other L/C
Participant or (v) any other circumstance, happening or event
42
whatsoever, whether or not
similar to any of the foregoing. The
failure of any L/C Participant to make any payment pursuant to this Section 3.4
shall not relieve any other L/C Participant of its obligation hereunder.
(b) If any amount (a “
Participation
Amount
”) required to be paid by any L/C Participant to an Issuing Lender
pursuant to Section 3.4(a) in respect of any unreimbursed portion of any
payment made by such Issuing Lender under any Letter of Credit is paid to such
Issuing Lender within three Business Days after the date such payment is due,
such Issuing Lender shall so notify the Administrative Agent, which shall
promptly notify the L/C Participants, and each L/C Participant shall pay to the
Administrative Agent, for the account of such Issuing Lender, on demand (and
thereafter the Administrative Agent shall promptly pay to such Issuing Lender)
an amount equal to the product of (i) such Participation Amount,
times
(ii) the daily average Federal Funds Effective Rate during the period from and
including the date such payment is required to the date on which such payment
is immediately available to such Issuing Lender,
times
(iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. If any
Participation Amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the Administrative Agent for the
account of the relevant Issuing Lender by such L/C Participant within three
Business Days after the date such payment is due, the Administrative Agent on
behalf of such Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such Participation Amount with interest thereon
calculated from such due date at the rate per annum applicable to Base Rate
Loans under the Revolving Credit Facility.
A certificate of the Administrative Agent submitted on behalf of an
Issuing Lender to any L/C Participant with respect to any amounts owing under
this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an
Issuing Lender has made payment under any Letter of Credit and has received
from the Administrative Agent any L/C
Participant’s
pro rata
share of such
payment in accordance with Section 3.4(a), such Issuing Lender receives any
payment related to such Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of collateral applied thereto by such Issuing
Lender), or any payment of interest on account thereof, such Issuing Lender
will distribute to the Administrative Agent for the account of such L/C
Participant (and thereafter the Administrative Agent will promptly distribute
to such L/C Participant) its pro rata share thereof;
provided
,
however
,
that in the event that any such payment received by such Issuing Lender shall
be required to be returned by such Issuing Lender, such L/C Participant shall
return to the Administrative Agent for the account of such Issuing Lender (and
thereafter the Administrative Agent shall promptly return to such Issuing
Lender) the portion thereof previously distributed by such Issuing Lender.
3.5
Reimbursement Obligation
of the
Borrower
. The Borrower agrees to
reimburse each Issuing Lender, within one Business Day (or two Business Days if
the Borrower and the Administrative Agent are notified on after 11:00 a.m. New
York City time on such date) after the Business Day on which such Issuing
Lender notifies the Borrower and the Administrative Agent of the date and
amount of a draft presented under any Letter of Credit and paid by such Issuing
Lender, for the amount of (a) such draft so paid and (b) any taxes, fees,
charges or other costs or expenses incurred by such Issuing Lender in
connection with such payment (the amounts described in the foregoing clauses
(a) and (b) in respect of any drawing,
43
collectively, the “
Payment
Amount
”). Each such payment shall be
made to such Issuing Lender at its address for notices specified herein in
lawful money of the United States of America and in immediately available
funds. Interest shall be payable on each
Payment Amount from the date of the applicable drawing until payment in full at
the rate set forth in (i) until the second Business Day following the date of
the applicable drawing, Section 2.15(b) and (ii) thereafter, Section
2.15(c). Each notice from an Issuing
Lender of a drawing under any Letter of Credit shall (unless an event of the
type described in clause (i) or (ii) of Section 8(f) shall have occurred and be
continuing with respect to the Borrower, in which case the procedures specified
in Section 3.4 for funding by L/C Participants shall apply) constitute a
request by the Borrower to the Administrative Agent for a borrowing pursuant to
Section 2.5 of Base Rate Loans (or, at the option of the Administrative Agent
and the Swing Line Lender in their sole discretion, a borrowing pursuant to
Section 2.7 of Swing Line Loans) in the amount of such drawing. The Borrowing Date with respect to such
borrowing shall be the first date on which a borrowing of Revolving Credit
Loans (or, if applicable, Swing Line Loans) could be made, pursuant to Section
2.5 (or, if applicable, Section 2.7), if the Administrative Agent had received
a notice of such borrowing at the time the Administrative Agent receives notice
from the relevant Issuing Lender of such drawing under such Letter of Credit.
3.6
Obligations Absolute
. The Borrower’s obligations under this Section
3 shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person.
The Borrower also agrees with each Issuing Lender that such Issuing
Lender shall not be responsible for, and the Borrower’s Reimbursement
Obligations under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged,
or any dispute between or among the Borrower and any beneficiary of any Letter
of Credit or any other party to which such Letter of Credit may be transferred
or any claims whatsoever of the Borrower against any beneficiary of such Letter
of Credit or any such transferee. No
Issuing Lender shall be liable to the Borrower for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except
for errors or omissions found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Issuing Lender. The
Borrower, the Lenders and any other party hereto agree that any action taken or
omitted by an Issuing Lender under or in connection with any Letter of Credit
issued by it or the related drafts or documents, including without limitation
the payment thereof, absent a finding of gross negligence or willful misconduct
of the Issuing Lender as determined by a final and nonappealable decision of a
court of competent jurisdiction, shall be binding on the Borrower, the Lenders
and any other party hereto and shall not result in any liability of such
Issuing Lender to the Borrower, the Lenders or any other party hereto.
3.7
Letter of Credit Payments
. If any draft shall be presented for payment
under any Letter of Credit, the relevant Issuing Lender shall promptly notify
the Borrower and the Administrative Agent of the date and amount thereof. The responsibility of the relevant Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit, in addition to any payment obligation expressly provided
for in such Letter of Credit issued by such Issuing Lender, shall be limited to
determining that the documents
44
(including each draft)
delivered under such Letter of Credit in connection with such presentment
appear on their face to be in conformity with such Letter of Credit.
3.8
Applications
.
To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the provisions of this Section 3, the
provisions of this Section 3 shall apply.
SECTION
4
. REPRESENTATIONS
AND WARRANTIES
To induce the Agents and the
Lenders to enter into this Agreement and to make the Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to each Agent and each Lender that:
4.1
Financial Condition
. (a)
The unaudited
pro
forma
consolidated balance sheet of the
Borrower and its Subsidiaries as of June 30, 2004 (including the notes thereto)
(the “
Pro Forma Balance Sheet
”), copies of which have heretofore been
furnished to each Lender, has been prepared in good faith based on information
available to the Borrower as of the date of delivery thereof, and presents
fairly on a
pro
forma
basis the estimated consolidated financial
position of the Borrower and its Subsidiaries as of June 30, 2004.
(b) The audited consolidated balance
sheets of the Borrower and its Subsidiaries as of December 31, 2001, December
31, 2002 and December 31, 2003, and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates, reported on
by and accompanied by a report from Deloitte & Touche LLP, copies of which
have heretofore been furnished to each Lender, present fairly the consolidated
financial condition of the Borrower and its Subsidiaries as at such date, and
the results of their operations and cash flows for the respective fiscal years
then ended. The unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as of June 30, 2004, and the
related unaudited consolidated statements of income and cash flows for the
six-month period ended on such date, copies of which have heretofore been
furnished to each Lender, present fairly the consolidated financial condition
of the Borrower and its Subsidiaries as at such date, and the results of their
operations and cash flows for the six-month period then ended (subject to
normal year-end audit adjustments and the absence of footnotes). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). The Borrower and its Subsidiaries do not have
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are
not reflected in the most recent financial statements referred to in this
paragraph or disclosed in SEC Reports filed prior to the date hereof or in the
Disclosure Statement. During the period
from June 30, 2004 to and including the date hereof there has been no
Disposition by the Borrower of any material part of its business or Property
except as has been expressly disclosed in SEC Reports filed prior to the date
hereof or in the Disclosure Statement.
4.2
No
Change
. Since December 31, 2003 there has been
no development or event that has had or could reasonably be expected to have a
Material Adverse
Effect
except as
45
has been expressly disclosed in SEC Reports
filed prior to the date hereof or in the Disclosure Statement.
4.3
Corporate Existence
; Compliance with Law
. Each of the Borrower and its Subsidiaries (a)
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate or limited liability
power and authority, and the legal right, to own and operate its Property, to
lease the Property it operates as lessee and to conduct the business in which
it is currently engaged, (c) is duly qualified as a foreign corporation or
other organization and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of Property or the conduct of its
business requires such qualification except to the extent to so qualify and be
in good standing could not in the aggregate reasonably be expected to have a
Material Adverse Effect (and, in any event, the Borrower is duly qualified as a
foreign corporation and in good standing under the laws of the States of
Montana and South Dakota), and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4
Corporate Powe
r; Authorization; Enforceable
Obligations
. The Borrower has the
corporate power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party and to borrow hereunder. The Borrower has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and to authorize the borrowings on the
terms and conditions of this Agreement.
Set forth on Schedule 4.4a are all consents or authorizations of,
filings with, notices to or other acts by or in respect of, any Governmental
Authority or any other Person required in connection with the authorization,
execution, or issuance of any First Mortgage Bond, the authorization, delivery,
performance or validity of any Supplemental Indenture, or the execution,
delivery, performance, validity or enforceability of the Bond Delivery
Agreement or any Security Document related thereto, and in each case any
application therefor (collectively, the “
First Mortgage Approvals
”),
which consents, authorizations, filings and notices have been obtained or made
and are in full force and effect. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or the execution, delivery,
performance, validity or enforceability of this Agreement or any of the other
Loan Documents, except (i) consents, authorizations, filings and notices described
in Schedule 4.4b, which consents, authorizations, filings and notices have been
obtained or made and are in full force and effect, (ii) the First Mortgage
Approvals and (iii) consents, authorizations, filings or notices which, if not
obtained, could not reasonably be expected to have a Material Adverse
Effect. This Agreement has been, and
each other Loan Document upon execution will be, duly executed and delivered on
behalf of the Borrower. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
4.5
No
Legal Bar
. The execution,
delivery and performance of this Agreement and the other Loan Documents, the
issuance of Letters of Credit, the borrowings
46
hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of the Borrower or any of its Subsidiaries (other than violations
which in the aggregate could not reasonably be expected to have a Material
Adverse Effect and after taking into consideration all consents and waivers
obtained by the Borrower prior to the date hereof) and will not result in, or
require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Indentures and the
Security Documents).
4.6
No Material Litigation
. Except as set forth on Schedule 4.6 or
disclosed in SEC Reports filed prior to the date hereof, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Borrower, threatened by or
against the Borrower or any of its Subsidiaries or against any of their
respective properties or revenues (a) with respect to any of the Loan Documents
or any of the transactions contemplated hereby or thereby, or (b) that could
reasonably be expected to have a Material Adverse Effect.
4.7
No
Default
. Neither the Borrower
nor any of its Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to
have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8
Ownership
of Property
. Except as set forth on
Schedule 4.8, each of the Borrower and its Subsidiaries has title in fee simple
to, or a valid leasehold interest in, or other appropriate property rights in,
all its material real property, and good title to, or a valid leasehold
interest in, all its other material Property.
4.9
Intellectual
Property
. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all Intellectual Property necessary for the
conduct of its business as currently conducted except for any such Intellectual
Property that if it were not so owned or licensed could not reasonably be
expected to have a Material Adverse Effect.
No material claim has been asserted and is pending by any Person
challenging or questioning the use of any Intellectual Property or the validity
or effectiveness of any Intellectual Property, nor does the Borrower know of
any valid basis for any such claim. The
use of Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any Person in any material respect except for such
claims and infringements that, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.
4.10
Taxes
. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its Property
and all other taxes, fees or other charges imposed on it or any of its Property
by any Governmental Authority (other than any amount the validity of which is
currently being contested in good faith and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be); and no tax Lien has been filed, and, to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
47
4.11
Federal
Regulations
. The Borrower is not
engaged in the business of extending credit for the purpose of “purchasing” or “carrying”
any “margin stock” within the respective meanings of each of the quoted terms
under Regulation U as now and from time to time hereafter in effect, and no
proceeds of any extension of credit hereunder will be used to “purchase” or “carry”
any “margin stock” or to extend credit to others for the purpose of “purchasing”
or “carrying” any “margin stock”, except in compliance with applicable law and
regulations.
4.12
Labor
Matters
. There are no strikes or
other labor disputes against the Borrower or any of its Subsidiaries pending
or, to the knowledge of the Borrower, threatened that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect. Hours worked by and payment made to employees
of the Borrower and its Subsidiaries have not been in violation of the Fair
Labor Standards Act or any other applicable Requirement of Law dealing with
such matters that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect.
All payments due from the Borrower or any of its Subsidiaries on account
of employee health and welfare insurance that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect if
not paid have been paid or accrued as a liability on the books of the Borrower
or the relevant Subsidiary.
4.13
ERISA
. Except as disclosed on Schedule 4.13; (a)
neither a Reportable Event nor an “accumulated funding deficiency” (within the
meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation is
made or deemed made with respect to any Single Employer Plan, and each Single
Employer Plan has complied in all material respects with the applicable
provisions of ERISA and the Code; (b) no termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a Single Employer Plan has
arisen, during such five-year period; (c) the present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Single Employer Plans) did not, as of the last annual valuation date
prior to the date on which this representation is made or deemed made, exceed
the value of the assets of such Single Employer Plan allocable to such accrued
benefits by a material amount; (d) neither the Borrower nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under ERISA; and (e) no such Multiemployer Plan is in
Reorganization or Insolvent.
4.14
Investment Company
Act; Other Regulations;
PUHCA
. The Borrower is not an “investment
company”, or a company “controlled” by an “investment company”, within the
meaning of the Investment Company Act of 1940, as amended. Except as set forth on Schedule 4.14, the
Borrower is not subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness. The Borrower is not a “holding company” as
defined in the Public Utility Holding Company Act of 1935, as amended (“
PUHCA
”). The Borrower is not required to make any
filing or obtain any approval under PUHCA in connection with the execution or
deliver of, the validity or enforceability of, or the performance under, the
Loan Documents (or the incurrence of indebtedness (including first mortgage
bonds) or granting of security interests thereunder) other than any filing or
approval which has been made or obtained and is in full force and effect. On the Closing Date, by virtue of one or more
Persons becoming a holder of 10% or more of the Borrower’s voting securities
(as
48
defined in PUHCA) upon
consummation of the Borrower’s Plan of Reorganization, the Borrower will fall
within the definition of a “subsidiary company” of a “holding company” (as such
terms are defined in PUHCA). By virtue
of the filing of an application for exemption under Section 3(a)(4) of PUHCA by
each such Person, the Borrower is a subsidiary of an exempt holding company,
and on that basis the Borrower is exempt from the provisions of PUHCA, except
for the provisions of Section 9(a)(2) thereof relating to the acquisition of
securities of a public utility company.
4.15
Subsidiaries
. (a)
The Subsidiaries listed on Schedule 4.15 constitute all the Subsidiaries
of the Borrower at the date hereof.
Schedule 4.15 sets forth as of the Closing Date the name and jurisdiction
of incorporation of each Subsidiary and, as to each Subsidiary, the percentage
of each class of Capital Stock owned by the Borrower.
(b) There
are no outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options granted to employees or
directors and directors’ qualifying shares) of any nature relating to any
Capital Stock of the Borrower or any Subsidiary, except as disclosed on
Schedule 4.15.
4.16
Use of Proceeds
.
The proceeds of the Term Loans will be used solely to repay in full and
terminate the Existing Credit Facility and to pay related fees and
expenses. The proceeds of Revolving
Credit Loans may be used on the Closing Date to repay the Existing Credit
Facility and thereafter, proceeds of the Revolving Credit Loans and Swing Line
Loans will be used for general corporate purposes of the Borrower and its
Subsidiaries in the ordinary course of business;
provided
,
however
,
that no proceeds of the Revolving Credit Loans will be used for loans to or
investments in the Excluded Subsidiaries.
Letters of Credit will support payment obligations of the Borrower (or,
subject to the provisions of Section 7.7(k), its Wholly Owned Subsidiaries or
Excluded Subsidiaries) in each case incurred for general corporate purposes of
the Borrower and its Wholly Owned Subsidiaries in the ordinary course of
business; provided that the aggregate outstanding face amount of Letters of
Credit issued for the account (or otherwise to support obligations) of Excluded
Subsidiaries shall not exceed $60,000,000 at any time.
4.17
Environmental Matters
. Except as set forth on Schedule 4.17, other
than exceptions to any of the following that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect:
(a) The Borrower and its
Subsidiaries: (i) are, and within the
period of all applicable statutes of limitation have been, in compliance with
all applicable Environmental Laws; (ii) hold all Environmental Permits (each of
which is in full force and effect) required for any of their current or
intended operations or for any property owned, leased, or otherwise operated by
any of them; (iii) are, and within the period of all applicable statutes of
limitation have been, in compliance with all of their Environmental Permits;
and (iv) reasonably believe that: each
of their Environmental Permits will be timely renewed and complied with,
without material expense; any additional Environmental Permits that may be
required of any of them will be timely obtained and complied with, without
material expense; and compliance with any Environmental Law
49
that is or is
expected to become applicable to any of them will be timely attained and
maintained, without material expense.
(b) Materials of
Environmental Concern are not present at, on, under, in, or about any real
property now or formerly owned, leased or operated by the Borrower or any of
its Subsidiaries, or at any other location (including, without limitation, any
location to which Materials of Environmental Concern have been sent for re-use
or recycling or for treatment, storage, or disposal) which could reasonably be
expected to (i) give rise to liability of the Borrower or any of its
Subsidiaries under any applicable Environmental Law, or (ii) interfere with the
Borrower’s or any of its Subsidiaries’ continued operations, or (iii) impair
the fair saleable value of any real property owned or leased by the Borrower or
any of its Subsidiaries (excluding any use restrictions that may be applicable
to any such real property as of the date hereof).
(c) There is no
judicial, administrative, or arbitral proceeding (including any notice of
violation or alleged violation) under or relating to any Environmental Law to
which the Borrower or any of its Subsidiaries is, or to the knowledge of the
Borrower or any of its Subsidiaries will be, named as a party that is pending
or, to the knowledge of the Borrower or any of its Subsidiaries, threatened.
(d) Neither the Borrower
nor any of its Subsidiaries has been notified that it is a potentially
responsible party under or relating to the federal Comprehensive Environmental
Response, Compensation, and Liability Act or any similar Environmental Law, or
with respect to any Materials of Environmental Concern.
(e) Neither the Borrower
nor any of its Subsidiaries has entered into or agreed to any consent decree,
order, or settlement or other agreement, or is subject to any judgment, decree,
or order or other agreement, in any judicial, administrative, arbitral, or
other forum for dispute resolution, the obligations of the Borrower and its
Subsidiaries under which remain unsatisfied and unwaived (other than ongoing
compliance obligations under any Environmental Law).
(f) Neither the
Borrower nor any of its Subsidiaries has assumed or retained, by contract or
operation of law, any liabilities of any kind, fixed or contingent, known or
unknown, under any Environmental Law or with respect to any Material of
Environmental Concern.
4.18
Accuracy of Information
, etc
. All information, reports and other papers and
data (other than projections) with respect to the Borrower or any Subsidiary
furnished to the Lenders by the Borrower, or on behalf of the Borrower, and all
SEC Reports were, in each case at the date thereof, complete and correct in all
material respects, or have been subsequently supplemented by other information,
reports or other papers or data, to the extent necessary to give the Lenders a
true and accurate knowledge of the subject matter in all material respects. All projections with respect to the Borrower
or any Subsidiary, furnished by the Borrower, were prepared and presented in
good faith by the Borrower based upon facts and assumptions that the Borrower
believed to be reasonable in light of current and foreseeable conditions, it
being understood that projections are subject to significant uncertainties and
contingencies, many of
50
which are beyond the control of
the Borrower and that no assurance can be given that the financial results set
forth in such projections will actually be realized and the Borrower shall be
under no obligation to update such projections.
No document furnished or statement made in writing to the Lenders by or
on behalf of the Borrower in connection with the negotiation, preparation or
execution of this Agreement and no SEC Report contained as of the date thereof
any untrue statement of a material fact, or omitted to state any such material
fact necessary in order to make the statements contained therein not
misleading.
4.19
Security Documents
.
(a)
Montana First Mortgage Indenture
.
(i) The First Mortgage
Bonds to be issued under the Montana First Mortgage Indenture, as heretofore
supplemented and to be supplemented by the Twenty-Fourth Supplemental Indenture
(the “
Montana Supplemental Indenture
”), when delivered to the Collateral
Agent, will be duly executed, authenticated, issued and delivered, and will
constitute valid and binding obligations of the Borrower, entitled to the benefits
of the security provided by the Lien of such Indenture (except to the extent
that enforceability of such Lien may be limited by the effect of certain laws
of the jurisdictions in which the physical properties covered thereby are
located upon the remedies provided in such Indenture, which limitations,
however, do not make the remedies afforded inadequate for the realization of
the security and benefits provided by such Indenture, and except as
enforceability of such Lien may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors’ rights and except that the availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor is brought).
(ii) The Montana First
Mortgage Indenture as heretofore supplemented now constitutes, and such
Indenture, when the Montana Supplemental Indenture shall have been duly filed
for recording and recorded, will constitute, a valid and enforceable first
mortgage Lien for the equal and proportionate security of the first mortgage
bonds issued or to be issued thereunder, upon substantially all of the physical
properties and franchises of the Borrower which are specifically described
therein as subject to the Lien thereof and which are used or useful in the
conduct of the Montana Utility Business, free from all prior Liens, charges or
encumbrances (other than “Excepted Encumbrances” (as defined in the Montana
First Mortgage Indenture) and other than, in the case of property acquired
after the date of the original execution and delivery of the Montana First
Mortgage Indenture, vendors’ liens, purchase money mortgages and any other
liens thereon at the time of acquisition thereof) (except to the extent that
enforceability of such Lien may be limited by the effect of certain laws of the
jurisdictions in which the physical properties covered thereby are located upon
the remedies provided in such Indenture as heretofore supplemented and to be
supplemented by the Montana Supplemental Indenture, which limitations, however,
do not make the remedies afforded inadequate for the realization of the
benefits provided by such
51
Indenture, and
except as enforceability of such Lien may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors’ rights and except that the availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor is brought); and the after-acquired
property clause in such Indenture subjects to the Lien thereof all
after-acquired utility property of the Montana Utility Business as provided
therein (except such thereof as is expressly excepted from the Lien of such
Indenture).
(iii) The Montana First
Mortgage Indenture as heretofore supplemented (excluding the Montana
Supplemental Indenture but including any necessary related financing
statements), has been filed and recorded wherever and to the extent necessary
to perfect the Lien thereof upon the properties now owned by the Borrower and
intended to be subject thereto; all fees or taxes in connection therewith have
been paid and no other filing or recordation is presently necessary in order to
perfect the Lien of such Indenture on such properties.
(iv) No filing or
recording of the Montana Supplemental Indenture is necessary to perfect the
Lien of the Montana First Mortgage Indenture upon the properties now owned by
the Borrower and intended to be subject thereto or to extend such Lien for the
benefit of the First Mortgage Bonds to be issued thereunder; no re-recording or
refiling of such Indenture or any other instruments or documents (except for
periodic filings which extend the effectiveness of financing statements) is
required to preserve and protect the Lien of such Indenture; and under the
present laws of the States in which the property intended to be subject to the
Lien of such Indenture is located, no further supplemental indentures or other
instruments or documents are required to be executed, filed and/or recorded to
extend the Lien of such Indenture to after-acquired property; however, the
Borrower is required by the terms of the Montana First Mortgage Indenture to
promptly record and file the Montana Supplemental Indenture.
(v) The Borrower has
good and marketable title to all properties owned by it which are subject to
the Montana First Mortgage Indenture, subject only (a) to the Lien of such
Indenture, (b) to Excepted Encumbrances (as defined in such Indenture) and (c)
to minor exceptions and defects which do not, in the aggregate, materially
interfere with the use by the Borrower of such properties for the purposes for
which they are held, materially detract from the value of said properties or in
any material way impair the security afforded by such Indenture.
(b)
South
Dakota First Mortgage Indenture
.
(i) The First Mortgage
Bonds to be issued under the South Dakota First Mortgage Indenture, as
heretofore supplemented and to be supplemented by a Supplemental Indenture
creating the South Dakota First Mortgage Bonds (the “
South Dakota
Supplemental Indenture
”), when delivered to the Collateral Agent, will be
duly executed, authenticated, issued and delivered, and will constitute valid
and binding obligations of the Borrower, entitled to the benefits of the
52
security
provided by the Lien of such Indenture (except to the extent that
enforceability of such Lien may be limited by the effect of certain laws of the
jurisdictions in which the physical properties covered thereby are located upon
the remedies provided in such Indenture, which limitations, however, do not
make the remedies afforded inadequate for the realization of the security and
benefits provided by such Indenture, and except as enforceability of such Lien
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights and except that the
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefor is
brought).
(ii) The South Dakota
First Mortgage Indenture as heretofore supplemented now constitutes, and such
Indenture, when the South Dakota Supplemental Indenture shall have been duly
filed for recording and recorded, will constitute, a valid and enforceable
first mortgage Lien for the equal and proportionate security of the first
mortgage bonds issued or to be issued thereunder, upon substantially all of the
physical properties and franchises of the Borrower which are specifically
described therein as subject to the Lien thereof and which are used or useful
in the conduct of the South Dakota Utility Business, free from all prior Liens,
charges or encumbrances (other than “Permitted Liens” (as defined in the South
Dakota First Mortgage Indenture) and other than, in the case of property
acquired after the date of the original execution and delivery of the South
Dakota First Mortgage Indenture, vendors’ liens, purchase money mortgages and
any other liens thereon at the time of acquisition thereof) (except to the
extent that enforceability of such Lien may be limited by the effect of certain
laws of the jurisdictions in which the physical properties covered thereby are
located upon the remedies provided in such Indenture as heretofore supplemented
and to be supplemented by the South Dakota Supplemental Indenture, which
limitations, however, do not make the remedies afforded inadequate for the
realization of the security and benefits provided by such Indenture, and except
as enforceability of such Lien may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors’ rights and except that the availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor is brought) and the after-acquired
property clause in such Indenture subjects to the Lien thereof all
after-acquired property of the South Dakota Utility Business as provided
therein (except such thereof as is expressly excepted from the Lien of such
Indenture).
(iii) The South Dakota
First Mortgage Indenture (excluding the South Dakota Supplemental Indenture but
including any necessary related financing statements), has been filed and
recorded wherever and to the extent necessary to perfect the Lien thereof upon
the properties now owned by the Borrower and intended to be subject thereto;
all fees or taxes in connection therewith have been paid and no filing of the
South Dakota Supplemental Indenture or other filing or recordation is necessary
in order to perfect the Lien of such Indenture on such properties. No filing or recording of the South Dakota
Supplemental Indenture is
53
necessary to
extend the Lien of the South Dakota First Mortgage Indenture for the benefit of
the First Mortgage Bonds to be issued under the South Dakota Supplemental
Indenture.
(iv) Subject to the South
Dakota First Mortgage Indenture being filed in the counties where such property
is located, the provisions of the South Dakota First Mortgage Indenture for the
extension of the Lien thereof to property located in the States of South Dakota
and Nebraska acquired by the Company after the date of the South Dakota
Supplemental Indenture are effective, without the execution by the Borrower of any
further supplemental indenture, to extend the lien of the South Dakota First
Mortgage to the interests of the Borrower in such property.
(v) The Borrower has
good and marketable title to all properties owned by it which are subject to
the South Dakota First Mortgage Indenture, subject only (a) to the Lien of such
Indenture, (b) to Permitted Liens (as defined in such Indenture) and (c) to
minor exceptions and defects which do not, in the aggregate, materially
interfere with the use by the Borrower of such properties for the purposes for
which they are held, materially detract from the value of said properties or in
any material way impair the security afforded by such Indenture.
4.20
Solvency
. The Borrower is, and after giving effect to
the transactions contemplated hereby and the incurrence of all Indebtedness and
obligations being incurred in connection herewith will be, Solvent.
SECTION 5
. CONDITIONS PRECEDENT
5.1
Conditions to Initial
Extension of
Credit
. The agreement of each Lender
to make the initial extension of credit requested to be made by it hereunder is
subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:
(a)
Loan Documents
. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized officer of the
Borrower, (ii) the Bond Delivery Agreement, executed and delivered by a
duly authorized officer of the Borrower, (iii) the Supplemental Indentures,
executed and delivered by a duly authorized officer of each party thereto and a
certified copy of each of the Indentures (including any amendments and
supplements thereto) and (iv) a Lender Addendum executed and delivered by each
Lender and accepted by the Borrower.
(b)
No Default or
Event of Default
. There shall not
exist (
pro forma
for the incurrence of the
Facilities) any Default or Event of Default.
(c)
Plan of
Reorganization
. (i) The effective
date of the Plan of Reorganization, the incurrence of the Facilities and the
other transactions contemplated hereby shall have been consummated on or prior
to November 1, 2004 pursuant to the Plan of Reorganization (and other related
documentation), in a manner reasonably acceptable to the Arrangers.
54
(ii) The Plan of Reorganization shall not
have been amended, supplemented or modified in any manner since August 18, 2004
other than in a manner reasonably acceptable to the Arrangers.
(d)
Bankruptcy Court
Orders
. The Bankruptcy Court shall
have entered an order, in form and substance reasonably acceptable to the
Arrangers, confirming the Plan of Reorganization, such order having become a
Final Order (the “
Confirmation Order
”), and such order shall be in full
force and effect, and the Administrative Agent shall have received a
certificate of a Responsible Officer to the foregoing effect.
(e)
Debtor-in-Possession
Financing
. Amounts outstanding under
any debtor-in-possession financings of the Borrower shall have been paid in
full (and any commitments thereunder terminated), and all Liens created in
favor of lenders (or their agents) under any such debtor-in-possession
financings shall have been terminated.
(f)
Approvals
. All governmental and third party approvals
(including, without limitation, of the Bankruptcy Court) necessary or, in the
reasonable discretion of the Arrangers, advisable in connection with the
transactions contemplated hereby and the continuing operations of the Borrower
and its Subsidiaries shall have been obtained and be in full force and effect,
and all applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority that would restrain, prevent or
otherwise impose materially adverse conditions on the financings contemplated
hereby.
(g)
Fees
. The Lenders and the Administrative Agent
shall have received all fees required to be paid, and all expenses required to
be reimbursed for which invoices have been presented (including reasonable fees,
disbursements and other charges of counsel to the Agents), on or before the
Closing Date. All such amounts will be
paid with proceeds of Loans made on the Closing Date and will be reflected in
the funding instructions given by the Borrower to the Administrative Agent on
or before the Closing Date.
(h)
Issuance of First
Mortgage Bonds
. (i) All First
Mortgage Approvals shall have been obtained and shall be in full force and
effect; (ii) the Supplemental Indentures shall have been validly authorized, executed
and delivered and the First Mortgage Bonds comprising (x) with respect to
the Revolving Credit Facility, $90 million principal amount of the First
Mortgage Bonds, Collateral (2004) Series A, due 2009 issued under the Montana
First Mortgage Indenture and $35 million principal amount of the New Mortgage
Bonds, Collateral (2004) Series A, due 2009 issued under the South Dakota First
Mortgage Indenture (such First Mortgage Bonds, collectively, the “
Revolving
Credit First Mortgage Bonds
”), and (y) with respect to the Term Loan
Facility, $72 million principal amount of the First Mortgage Bonds, Collateral
(2004) Series B, due 2011 issued under the South Dakota Mortgage Indenture and
$28 million principal amount of the New Mortgage Bonds, Collateral (2004)
Series B, due 2011 issued under the South Dakota First Mortgage Indenture (such
First Mortgage Bonds, collectively, the “
Term Loan First Mortgage Bonds
”),
shall have been validly authorized, executed and authenticated and validly
issued and delivered to the Collateral Agent; and (iii) the
55
Administrative
Agent shall have received (I) copies of all opinions, certificates, orders,
consents and other documents that are delivered to the trustees under the Indentures
as conditions precedent to (or otherwise in connection with) the issuance of
the First Mortgage Bonds under the Indentures (together with, in the case of
each such opinion that is not addressed to the Collateral Agent, a letter from
the counsel rendering such opinion to the effect that the Collateral Agent is
entitled to rely on such opinion as if such opinion were addressed to the
Collateral Agent), (II) copies of all First Mortgage Approvals and (III)
such other opinions, certificates and documents reasonably related to the First
Mortgage Bonds, the Indentures (including the Supplemental Indentures) and the
Liens and security interests of the Indentures as the Arrangers shall have
reasonably requested, and all of the foregoing documents (including without
limitation the First Mortgage Approvals, the Supplemental Indentures and the
First Mortgage Bonds) shall be in form and substance reasonably satisfactory to
the Arrangers.
(i)
Financial
Statements
. The Lenders shall have
received satisfactory audited and unaudited (which have been reviewed by the
independent accountants for the Borrower as provided in Statement on Auditing
Standards No. 71) financial statements of the Borrower and all other completed
or probable acquisitions (including
pro forma
financial statements) meeting the requirements of Regulation S-X for a Form S-1
registration statement under the Securities Act of 1933, as amended, and all
such financial statements shall be satisfactory in form to the Arrangers in
their sole discretion. Such financial
statements shall show
pro forma
Consolidated EBITDA of the Borrower (calculated in accordance with Regulation
S-X and including only those adjustments the Administrative Agent agrees are
appropriate) for the twelve-month period ended June 30, 2004 of not less than
$190 million and
pro forma
total leverage
of not more than 4.75x.
(j)
Closing
Certificate
. The Administrative
Agent shall have received certificates of the Borrower, dated the Closing Date,
substantially in the forms of Exhibit C-1 and C-2, with appropriate insertions
and attachments.
(k)
Projections
. The Lenders shall have received projections
for fiscal years 2004 through 2008 (consistent in all substantial respects with
the Plan of Reorganization, as currently in effect) and a satisfactory written
analysis of the business and prospects of the Borrower and its Subsidiaries for
the period from the Closing Date through the final maturity of the Facilities
(as extended or exchanged), substantially as previously provided in the Confidential
Information Memorandum, all in form and substance reasonably satisfactory to
the Arrangers.
(l)
Environmental
Report
. The Administrative Agent
shall have received a copy of the Borrower’s recent environmental audit
performed by ELM Consulting, LLC with respect to the real property owned or
leased by the Borrower and its Subsidiaries, in form and substance reasonably
satisfactory to the Arrangers.
(m)
Legal Opinions
. The Administrative Agent shall have received
the following executed legal opinions addressed to the Administrative Agent and
the Lenders and in form and substance reasonably satisfactory to the Arrangers:
56
(i) the legal opinion
of Paul, Hastings, Janofsky & Walker, L.L.P., counsel to the Borrower and
its Subsidiaries;
(ii) the legal opinion
of Alan D. Dietrich, Vice President - Legal Administration & Corporate
Secretary of the Borrower and its Subsidiaries; and
(iii) the legal opinion
of local counsel in each of Iowa, Nebraska, Montana, North Dakota, South Dakota
and Wyoming as may be reasonably required by the Administrative Agent.
(n)
PATRIOT Act
. The Lenders shall have received, sufficiently
in advance of the Closing Date, all documentation and other information
required by bank regulatory authorities under applicable “know your customer”
and anti-money laundering rules and regulations, including without limitation
the United States PATRIOT Act.
5.2
Conditions to Term
Loans
. The agreement of each Lender to make the
extension of Term Loans requested to be made by it hereunder is subject to the
satisfaction, prior to or concurrently with the making of such extension of
credit on the Closing Date, of the conditions precedent set forth in Section
5.1 hereof and the following additional conditions precedent.
(a) The Administrative
Agent shall have received satisfactory evidence that all conditions to the
issuance of the Senior Notes have been (or concurrently with the making of the
extensions of credit hereunder on the Closing Date will be) satisfied and that
the Borrower shall receive on the Closing Date at least $225 million in gross
proceeds from the issuance of its Senior Notes on terms reasonably satisfactory
to the Arrangers (including without limitation the terms of the first mortgage
bonds issued under the Indentures in connection therewith) and the Senior Notes
Indenture and all related documentation shall be in form and substance
reasonably satisfactory to the Arrangers.
(b) The Administrative Agent shall have
received satisfactory evidence that on the Closing Date all amounts outstanding
under the Existing Credit Facility shall be paid in full (and any commitments
thereunder terminated), the first mortgage bonds issued in connection with the
Existing Credit Facility shall be retired, and all Liens created in favor of
lenders (or their agents) under the Existing Credit Facility shall be
terminated.
5.3
Conditions to Each
Extension of Credit
The agreement of each Lender to make any extension of credit requested
to be made by it hereunder on any date (including, without limitation, its
initial extension of credit) is subject to the satisfaction of the following
conditions precedent:
(a)
Representations
and Warranties
. Each of the
representations and warranties made by the Borrower in or pursuant to the Loan
Documents (except to the extent applicable to an earlier date) shall be true
and correct in all material respects on and as of such date as if made on and
as of such date.
57
(b)
No Default
. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
Each borrowing by and issuance of a Letter of
Credit on behalf of the Borrower hereunder shall constitute a representation
and warranty by the Borrower as of the date of such extension of credit that
the conditions contained in this Section 5.3 have been satisfied.
SECTION 6
. AFFIRMATIVE COVENANTS
The Borrower
hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other Obligation is owing to any
Lender or any Agent hereunder, the Borrower shall and shall cause each of its
Subsidiaries to:
6.1
Financial Statements
. Furnish to the Administrative Agent (which
shall make available such items to the Lenders):
(a) as soon as
available, but in any event within 90 days after the end of each fiscal year of
the Borrower, a copy of the audited consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such year and the related audited
consolidated statements of income and cash flows for such year, setting forth
in each case in comparative form the actual figures as of the end of and for
the previous year, reported on without a “going concern” or like qualification
or exception, or qualification arising out of the scope of the audit, by
Deloitte & Touche or other independent certified public accountants of
nationally recognized standing, provided that delivering to the Administrative
Agent copies of the Borrower’s Annual Report on Form 10-K for such period shall
satisfy the foregoing requirements; and
(b) as soon as
available, but in any event not later than 45 days after the end of each of the
first three quarterly periods of each fiscal year of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such quarter and the related unaudited consolidated statements of
income and cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in comparative form
the actual figures as of the end of and for the corresponding period in the
previous year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments and the
absence of footnotes), provided that delivering to the Administrative Agent
copies of the Borrower’s Quarterly Report on Form 10-Q for such period shall
satisfy the foregoing requirements;
all such financial statements to be complete
and correct in all material respects and to be prepared in reasonable detail
and in accordance with GAAP applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such
accountants or officer, as the case may be, and disclosed therein). Information required to be delivered pursuant
to the foregoing Section 6.1(a) and (b) or pursuant to Section 6.2(c)
below shall be deemed to have been delivered on the date on which Borrower
provides notice (including notice by e-mail) to the Administrative Agent (which
notice the Administrative Agent will convey promptly to the
58
Lenders) that such information has been
posted on the SEC website on the Internet at sec.gov/edgar/searches.htm or at
another website identified in such notice and accessible by the Lenders without
charge; provided that (i) such notice may be included in a certificate delivered
pursuant to Section 6.2(a) or (b) and (ii) the Borrower shall deliver
paper copies of such information to the Administrative Agent, and the
Administrative Agent shall deliver paper copies of such information to any
Lender that requests such delivery.
6.2
Certificates
; Other Information
. Furnish to the Administrative Agent (which
shall make available such items to the Lenders):
(a) concurrently with
the delivery of the financial statements referred to in Section 6.1(a), a
certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate (it being understood that such certificate shall
be limited to the items that independent certified public accountants are
permitted to cover in such certificates pursuant to the professional standards
and customs of their profession);
(b) concurrently with
the delivery of any financial statements pursuant to Section 6.1, (i) a
certificate of a Responsible Officer stating that, to the best of such
Responsible Officer’s knowledge, the Borrower during such period has observed
or performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to which it
is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate and (ii) a Compliance
Certificate containing all information and calculations necessary for
determining compliance by the Borrower and its Subsidiaries with the provisions
of this Agreement referred to therein as of the last day of the fiscal quarter
or fiscal year of the Borrower, as the case may be;
(c) within five Business
Days after the same are sent, copies of all reports that the Borrower sends to
the holders of any class of its public equity securities and, within five
Business Days after the same are filed, copies of all registration statements,
SEC Reports and other material reports that the Borrower may file with the SEC;
(d) concurrently with
the delivery thereof or promptly after receipt thereof, a copy of all notices
of default by the Borrower under either Indenture or the Senior Note Indenture;
(e) concurrently with
the submission by the Borrower to the trustee under either Indenture of an
application or request for any of the following, a copy of such application or
request: (i) the authentication and delivery of bonds, (ii) the application of
insurance proceeds, (iii) the release of property or withdrawal of cash or (iv)
the execution and delivery of a supplemental indenture pertaining to such
Indenture; and
59
(f) promptly, such
additional financial and other information (including any bondable capacity
reports or information then available) as any Lender may, through the
Administrative Agent, from time to time reasonably request.
6.3
Payment
of
Obligations
. Pay,
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its obligations of whatever nature,
material to the Borrower and its Subsidiaries taken as a whole, except where
the amount or validity thereof is currently being contested in good faith and
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Borrower or its Subsidiaries, as the case may be.
6.4
Conduct of Business
and Maintenance of
Existence; Compliance
. (a) (i)
Preserve, renew and keep in full force and effect its organizational existence
and (ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 7.4 and except, in the
case of clause (ii) above, to the extent that failure to do so could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect; and
(b) comply with all Contractual Obligations and Requirements of Law, except to
the extent that failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.5
Maintenance of Property
; Insurance
. (a) Keep all material Property and systems
useful and necessary in its business in good working order and condition,
ordinary wear and tear and casualties excepted, (b) maintain with financially
sound and reputable insurance companies insurance on all its material Property
in at least such amounts and against at least such risks as are usually insured
against in the same general area by companies engaged in the same or a similar
business, (c) maintain ownership, directly (and not through any Subsidiary), of
all or substantially all of the businesses and assets of the Utility Business,
(d) subject to the Borrower’s rights under Section 7.5, maintain the Lien of
the Montana First Mortgage Indenture on all or substantially all of the assets
of the Montana Utility Business and (e) subject to the Borrower’s rights under
Section 7.5, maintain the Lien of the South Dakota First Mortgage Indenture on
all or substantially all of the assets of the South Dakota Utility Business.
6.6
Inspection of Property
; Books and
Records; Discussions
. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) upon
reasonable prior notice, permit representatives of any Lender to visit and
inspect any of its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and
employees of the Borrower and its Subsidiaries and with its independent
certified public accountants.
6.7
Notices
. Within five days after the Borrower has
knowledge of such event or circumstance under clause (a) below, within ten days
after the Borrower has knowledge of such event or circumstance under clause
(b), (c) or (f) below, and within thirty days after the Borrower has knowledge
of such event or circumstance under clause (d) or (e) below, give notice to the
Administrative Agent of:
60
(a) the occurrence of
any Default or Event of Default;
(b) any (i) default or
event of default under any Contractual Obligation of the Borrower or any of its
Subsidiaries or (ii) litigation, investigation or proceeding which may exist at
any time between the Borrower or any of its Subsidiaries and any Governmental
Authority, that in either case, if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or
proceeding affecting the Borrower or any of its Subsidiaries (i) in which the
amount involved is $10,000,000 or more and not covered by insurance, (ii) in
which injunctive or similar relief is sought which if such relief is obtained
could reasonably be expected to have a Material Adverse Effect, or (iii) which
directly relates to any Loan Document;
(d) (i) the occurrence
of any Reportable Event with respect to any Single Employer Plan, a failure to
make any required contribution to a Single Employer Plan, the creation of any
Lien in favor of the PBGC or a Single Employer Plan or any withdrawal from, or
the termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by the
PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer
Plan with respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Single Employer Plan or Multiemployer Plan;
(e) any notice that any
Governmental Authority may deny any application for a material Environmental
Permit sought by, or revoke or refuse to renew any material Environmental
Permit held by, the Borrower; and
(f) any development or
event that has had or could reasonably be expected to have a Material Adverse
Effect.
Each notice pursuant to this Section shall be
accompanied by a statement of a Responsible Officer setting forth details of
the occurrence referred to therein and stating what action the Borrower or the
relevant Subsidiary proposes to take with respect thereto. For purposes of this Section 6.7, the
Borrower shall be deemed to have knowledge of an event or circumstance if (i)
the chief executive officer, president, chief financial officer, treasurer,
general counsel or any assistant general counsel has actual knowledge or
receives written notice thereof or (ii) any other officer of the Borrower
charged with responsibility for the matter that is the subject of such notice
requirement knows or should have known that such notice was required.
6.8
Environmental
Laws
. (a)
Comply in all respects with, and ensure compliance in all respects by
all tenants and subtenants, if any, with, all applicable Environmental Laws,
and obtain and comply in all respects with and maintain, and ensure that all
tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except in any such case as
such failure to comply or obtain would not reasonably be expected to have a
Material Adverse Effect.
61
(b) Conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under material Environmental Laws
and promptly comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws.
6.9
Further
Assurances
. From time to time
execute and deliver, or cause to be executed and delivered, such additional
instruments, certificates or documents, and take such actions, as the
Administrative Agent may reasonably request for the purposes of implementing or
effectuating the provisions of this Agreement and the other Loan Documents, or
of more fully perfecting or renewing the rights of the Administrative Agent and
the Lenders with respect to the Collateral (or with respect to any additions
thereto or replacements or proceeds thereof or with respect to any other
property or assets hereafter acquired by the Borrower which may be deemed to be
part of the Collateral) pursuant hereto or thereto. Upon the exercise by the Administrative Agent
or any Lender of any power, right, privilege or remedy pursuant to this
Agreement or the other Loan Documents which requires any consent, approval,
recording, qualification or authorization of any Governmental Authority, the
Borrower will execute and deliver, or will cause the execution and delivery of,
all applications, certifications, instruments and other documents and papers
that the Administrative Agent or such Lender may be required to obtain from the
Borrower or any of its Subsidiaries for such governmental consent, approval,
recording, qualification or authorization.
6.10
Credit Ratings
.
Use commercially reasonable efforts to maintain ratings by both Moody’s
and Standard & Poor’s with respect to the Facilities.
6.11
Excluded
Subsidiaries
. (i) Maintain, and
cause to be maintained, the books and records and bank accounts of the Borrower
and its Subsidiaries separate from the books and records and bank accounts of
the Excluded Subsidiaries, and at all times present the Excluded Subsidiaries
to the public as separate and distinct legal entities; (ii) maintain, and cause
to be maintained, financial statements of the Excluded Subsidiaries separate
from those of the Borrower and its Subsidiaries; (iii) cause the Excluded
Subsidiaries to hold title to any assets they own in their own respective name,
and deposit all of their respective funds in checking accounts, saving
accounts, time deposits or certificates of deposit in their respective names or
invest such funds in their respective names; (iv) cause the Excluded
Subsidiaries to observe all corporate formalities under Requirements of Law
necessary to maintain their identity as entities separate and distinct from the
Borrower and its Subsidiaries; and (v) not commingle the assets of Borrower or
any Subsidiary with assets of any Excluded Subsidiary.
SECTION 7
. NEGATIVE COVENANTS
The Borrower
hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other Obligation is owing to any
Lender or any Agent hereunder, the Borrower shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly:
7.1
Financial Condition
Covenants
.
(a) Consolidated
Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower (or, for any
62
period ending with
or prior to FQ3 2005, as provided in the definition of Consolidated Interest
Expense) ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
|
Fiscal Quarter
|
|
Consolidated Interest
Coverage Ratio
|
|
FQ1 2005 through FQ3 2005
|
|
2.50x
|
|
FQ4 2005 through FQ3 2006
|
|
2.75x
|
|
FQ4 2006 through FQ3 2009
|
|
3.25x
|
|
FQ4 2009 and thereafter
|
|
3.50x
|
(b)
Consolidated
Debt to Capitalization Ratio
. Permit
the Consolidated Debt to Capitalization Ratio for any period of the Borrower
ending with any fiscal quarter set forth below to exceed the ratio set forth
below opposite such fiscal quarter:
|
Fiscal Quarter
|
|
Consolidated Debt to
Capitalization Ratio
|
|
|
FQ1 2005 through FQ2 2005
|
|
60.0
|
%
|
|
FQ3 2005 through FQ3 2006
|
|
58.5
|
%
|
|
FQ4 2006 through FQ3 2009
|
|
57.0
|
%
|
|
FQ4 2009 and thereafter
|
|
55.0
|
%
|
7.2
Limitation
on Indebtedness
. Create, incur,
assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the
Borrower pursuant to any Loan Document;
(b) Indebtedness of the
Borrower to any Subsidiary, Indebtedness of any Subsidiary to any other
Subsidiary and, to the extent permitted under Section 7.7(k), Indebtedness of
any Subsidiary to the Borrower;
(c) Indebtedness
(including, without limitation, Capital Lease Obligations) secured by Liens
permitted by Section 7.3(g) in an aggregate principal amount not to exceed
$15,000,000 at any one time outstanding;
(d) Indebtedness
outstanding on the date hereof and listed on Schedule 7.2(d) and any
refinancings, refundings, renewals or extensions thereof (without any increase
in the principal amount thereof or any shortening of the maturity of any
principal amount thereof);
(e) Guarantee
Obligations made in the ordinary course of business by the Borrower or any of
its Subsidiaries of obligations of the
Borrower or any of its Subsidiaries;
(f) the Senior Notes in
an aggregate principal amount not to exceed $225 million and, subject to
Section 7.8. any refinancings, refundings, renewals or extensions
63
thereof (without
any increase in the principal amount thereof or any shortening of the maturity
of any principal amount thereof);
(g) Receivables Facility
Attributed Indebtedness in an aggregate principal amount not to exceed
$70,000,000 any one time outstanding;
(h) Indebtedness of the
Borrower incurred or assumed in connection with Permitted Acquisitions;
provided
that any such Indebtedness incurred by the Borrower, or assumed by the Borrower
if incurred in conjunction with such Acquisition, shall not mature or have any
scheduled amortization (in excess of 1% per annum) prior to April 30, 2012;
(i) additional
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount (for the Borrower and all Subsidiaries) not to exceed
$10,000,000 at any one time outstanding;
(j) Indebtedness (not
constituting or supporting Funded Debt) consisting of contingent reimbursement
obligations of the Borrower or any of its Subsidiaries under surety, indemnity,
performance, release and appeal bonds and guaranties thereof and under letters
of credit required in the ordinary course of business or in connection with the
enforcement of rights or claims of the Borrower or any of its Subsidiaries;
(k) Non-Recourse Debt of
a Subsidiary;
(l) Indebtedness of the
Borrower or any Subsidiary evidenced by mortgage bonds issued under and secured
by an indenture executed after the date hereof, provided that (i) the Lien of
such indenture covers only assets acquired by the Borrower and its Subsidiaries
after the date hereof (and, in any event, does not cover any assets which are
covered by the Lien of either Indenture nor which constitute a part of the
Montana Utility Business or the South Dakota Utility Business), (ii) the
proceeds of such issuance shall be used to finance the purchase of new utility
assets (or capital expenditures with respect thereto), and (iii) after giving
effect to such incurrence, the Borrower shall be in compliance with the
provisions of Section 7.1;
(m) Indebtedness of the
Borrower evidenced by first mortgage bonds under an Indenture incurred after
the date hereof, provided that (i) such Indebtedness refinances or replaces
then outstanding first mortgage bonds issued under such Indenture (without any
increase in the principal amount thereof or any shortening of the maturity of
any principal amount thereof) or (ii) the proceeds of such Indebtedness are
used solely to finance QF Liabilities or capital expenditures of the Borrower
with respect to assets subject to the Lien of such Indenture (any of which capital
expenditures are made or incurred after the date hereof) in accordance with the
terms of such Indenture and so long as, in the case of this clause (ii), (1)
such first mortgage bonds are issued on the basis of Property Additions (as
such term is defined in such Indenture) in compliance with such Indenture, (2)
in the case of QF Liabilities, the aggregate principal amount of such first
mortgage bonds (together with the aggregate principal amount of Indebtedness
incurred pursuant to Section 7.2(o) below) does not exceed in the aggregate
$180 million and (3) any such
64
Indebtedness
shall not mature or have any scheduled amortization (in excess of 1% per annum)
prior to April 30, 2012;
(n) Indebtedness of the Borrower
constituting contingent reimbursement obligations with respect to the Existing
Letters of Credit; provided that the face amount of the Existing Letters of
Credit shall not be increased nor shall any Existing Letter of Credit be
renewed or extended; and
(o)
Indebtedness incurred to
refinance QF Liabilities so long as (i) the aggregate principal amount of such
Indebtedness (together with the aggregate principal amount of first mortgage
bonds issued pursuant to Section 7.2(m)(ii) with respect to QF Liabilities)
does not exceed in the aggregate $180 million and (ii) any such Indebtedness
shall not mature or have any scheduled amortization (in excess of 1% per annum)
prior to April 30, 2012
.
7.3
Limitation on Liens
. Create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except
for:
(a) Liens for taxes not
yet due or that are being contested in good faith,
provided
that
adequate reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;
(b) landlord liens for
rent not yet due and payable, and carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business that are not overdue for a period of more than 60 days or that are
being contested in good faith;
(c) pledges or deposits
in connection with workers’ compensation, unemployment insurance and other
social security legislation;
(d) deposits to secure
liability to insurance carriers under insurance or self-insurance arrangements,
and deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business that, in the aggregate, do not in any case materially
detract from the value of the Property subject thereto or materially interfere
with the ordinary conduct of the business of the Borrower and its Subsidiaries
taken as a whole;
(f) Liens in existence
on the date hereof listed on Schedule 7.3,
provided
that no such Lien is
spread to cover any additional Property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(g) Liens securing
Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section
7.2(c) to finance the acquisition of fixed or capital assets,
provided
65
that (i) such
Liens shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time encumber any
Property other than the Property financed by such Indebtedness, (iii) the
amount of Indebtedness secured thereby is not increased and (iv) such
Indebtedness is permitted under Section 7.2(c);
(h) Liens securing
Indebtedness of the Borrower incurred or assumed in connection with any
Permitted Acquisition,
provided
that (i) such Liens do not at any time
encumber any Property other than the Property acquired in connection with such
Permitted Acquisition, (ii) the amount of Indebtedness secured thereby is not
increased and (iii) such Indebtedness is permitted to be incurred under Section
7.2(h) or (l);
(i) Liens created
pursuant to the Security Documents and the Lien created pursuant to the Senior
Note Indenture with respect to the first mortgage bonds issued in connection
with the Senior Notes;
(j) any interest or
title of a lessor under any lease entered into by the Borrower or any other
Subsidiary in the ordinary course of its business and covering only the assets
so leased;
(k) the Lien of each
Indenture, as such Indenture may be amended or supplemented from time to time
in accordance with the terms hereof, securing first mortgage bonds outstanding
on the date hereof and listed on Schedule 7.2(d) or permitted to be outstanding
hereafter pursuant to
Section 7.2(a) or (m)
;
(l) Liens on accounts
receivables of the Borrower (
provided
such assets are not subject to the
Lien of either Indenture) and Liens on assets of an SPV, in each case securing
Indebtedness permitted to be outstanding pursuant to
Section 7.2(g)
;
(m) any Lien vested in
any licensor or permitter for obligations or acts to be performed, the
performance of which obligations or acts is required under licenses or permits,
so long as the performance of such obligations or acts is not delinquent or is
being contested in good faith and by appropriate proceedings;
(n) any controls,
restrictions, obligations, duties or other burdens imposed by any federal,
state, municipal or other law, or by any rule, regulation or order of any
Governmental Authority, upon any property of the Borrower or the operation or
use thereof or upon the Borrower with respect to any of its property or the
operation or use thereof or with respect to any franchise, grant, license,
permit or public purpose requirement, or any rights reserved to or otherwise
vested in any Governmental Authority to impose any such controls, restrictions,
obligations, duties or other burdens;
(o) any right which any
Governmental Authority may have by virtue of any franchise, license, contract
or statute to purchase, or designate a purchaser of or order the sale of, any
property of the Borrower upon payment of cash or reasonable compensation
therefor or to terminate any franchise, license or other rights or to regulate
the property and business of the Borrower;
66
(p) party-wall
agreements and agreements, in each case existing on the date hereof, for and
obligations relating to the joint or common use of property owned solely by the
Borrower or owned by the Borrower in common or jointly with one or more
parties;
(q) Liens existing on
the date hereof securing indebtedness incurred by a Person, other than the
Borrower which indebtedness has been neither assumed nor guaranteed by the
Borrower nor on which it customarily pays interest, existing on property which
the Borrower owns jointly or in common with such Person or such Person and
others, if there is a bar against partition of such property which would
preclude the sale of such property by such other Person or the holder of such
lien without the consent of the Borrower;
(r) Liens not
otherwise permitted by this Section 7.3 so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the
aggregate fair market value (determined, in the case of each such Lien, as of
the date such Lien is incurred) of the assets subject thereto exceeds (as to
the Borrower and all Subsidiaries) $10,000,000 at any one time;
(s) any attachment or
judgment Lien not constituting an Event of Default;
(t) Liens solely on
assets of a Subsidiary incurring Indebtedness permitted under Section 7.2,
which Liens secure such Indebtedness;
(u) Liens on Mortgaged
and Pledged Property (as defined in the Montana First Mortgage Indenture) not
securing Indebtedness which Liens constitute Excepted Encumbrances (as defined
in the Montana First Mortgage Indenture);
(v) Liens on Mortgaged
Property (as defined in the South Dakota First Mortgage Indenture) not securing
Indebtedness which Liens constitute Permitted Liens (as defined in the South
Dakota First Mortgage Indenture) other than of the type set forth in clause (a)
or (q) of the definition of “Permitted Liens” set forth in the South Dakota
First Mortgage Indenture; and
(w) Liens on assets other
than Mortgaged Property (as defined in the South Dakota First Mortgage
Indenture) or Mortgaged and Pledged Property (as defined in the Montana First
Mortgage Indenture) securing contingent obligations of the Borrower under Hedge
Agreements permitted pursuant to Section 7.19.
7.4
Limitation on
Fundamental Changes
. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), Dispose of all or substantially all of its
Property or business or, in the case of the Borrower, Dispose of all or
substantially all of the South Dakota Utility Business or the Montana Utility
Business, except that:
(a) any Subsidiary of
the Borrower may be merged or consolidated with or into the Borrower (
provided
that the Borrower shall be the continuing or surviving corporation);
67
(b) any Subsidiary of
the Borrower may Dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to the Borrower; and
(c) the Borrower or any
Subsidiary of the Borrower may merge or consolidate with any Person in
consummation of a Permitted Acquisition (
provided
that in the case of
the Borrower, the Borrower shall be the surviving or continuing corporation).
7.5
Limitation on Disposition
of
Property
. Dispose of any of its
Property (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary’s Capital Stock to any Person,
except:
(a) the Disposition of
equipment that, in the reasonable judgment of the Borrower, has become
uneconomic, obsolete or worn out and which is Disposed of in the ordinary
course of business;
(b) the sale of
inventory in the ordinary course of business;
(c) Dispositions
permitted by Section 7.4(b);
(d) the sale or issuance
of any Subsidiary’s Capital Stock to the Borrower;
(e) Dispositions of
assets released from the Lien of an Indenture in accordance with clauses (i) or
(ii) of Section 7.10;
(f) Dispositions of
(i) all of any portion of the interest of the Borrower or any of its
Subsidiaries in
Colstrip
or (ii) the assets of, or Capital Stock or debt interests in,
Montana Megawatts I, LLC and other entities formed for the Montana First
Megawatts Project;
(g) Dispositions of
existing equity or debt interests in any Excluded Subsidiary (including any
sale or liquidation of the promissory note payable from Cornerstone to the
Borrower);
(h) any transfer of an
interest in Receivables, Receivables and Related Security, accounts or notes
receivable under any Receivables Purchase Document (including related transfers
thereof to an SPV);
(i) the Disposition of
other assets having a fair market value not to exceed $20,000,000 in the
aggregate;
(j) any Recovery Event;
and
(k) Dispositions of
assets released from the Lien of an Indenture in accordance with the terms of
such Indenture (other than in accordance with clause (e) above), so long as (i)
no Default or Event of Default then exists, (ii) (y) the Consolidated Interest
Coverage Ratio and Consolidated Debt to Capitalization Ratio of the Borrower
after giving effect to such Disposition, calculated on a
pro
forma
basis as of the end of the
68
quarter most
recently ended prior to the date of such Disposition and for the four fiscal
quarters then ending, shall be equal to or better than the Consolidated
Interest Coverage Ratio and Consolidated Debt to Capitalization Ratio of the
Borrower prior to giving effect to such Disposition for such period and (z)
after giving effect to such Disposition, the Borrower shall be in compliance
with the provisions of Section 7.1, calculated on a
pro
forma
basis
as of the end of the quarter most recently ended prior to the date of such
Disposition and for the four fiscal quarters then ending (and, if the aggregate
consideration (including cash consideration and the fair value of any non-cash
consideration and Indebtedness assumed) for such Disposition exceeds $25
million, the Borrower shall have delivered to the Administrative Agent a
Compliance Certificate demonstrating such
pro
forma
compliance),
and (iii) the Net Cash Proceeds of such Disposition are used to repay the Loans
or reinvested in the Montana Utility Business (in the case of Dispositions of
assets under the Montana Indenture) or the South Dakota Utility Business (in
the case of Dispositions of assets under the South Dakota Indenture) in each
case in accordance with the terms of Section 2.12(b) (and, notwithstanding
Section 2.12(d), in the event the Borrower prepays Revolving Credit Loans (or
would have been obligated pursuant to Section 2.12(b) to prepay Revolving
Credit Loans had they been then outstanding), the Borrower shall permanently
reduce the Revolving Credit Commitments by such amount);
provided
, that with
respect to Dispositions pursuant to clause (f), (g), (i), (j) and (k) of this
Section 7.5, the requirements of Section 2.12(b) are complied with in
connection therewith.
7.6
Limitation on Restricted Payments
. Declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any Capital Stock of the Borrower or any Subsidiary, whether now or
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the Borrower or any Subsidiary, or enter into any derivatives or other
transaction with respect to any Capital Stock of the Borrower or any Subsidiary
with any financial institution, commodities or stock exchange or clearinghouse
(a “
Derivatives Counterparty
”) obligating the Borrower or any Subsidiary
to make payments to such Derivatives Counterparty as a result of any change in
market value of any such Capital Stock (collectively, “
Restricted Payments
”),
except that:
(a) any Subsidiary may
make Restricted Payments to the Borrower;
(b) the Borrower may
make Restricted Payments in the form of common stock of the Borrower;
(c) the Borrower may
purchase the Borrower’s common stock or common stock options from present or
former officers or employers of the Borrower or any Subsidiary upon the death,
disability or termination of employment of such officer or employer,
provided
,
that the aggregate amount of payments under this paragraph subsequent to the
date hereof (net of any proceeds received by the Borrower subsequent to the
date hereof in connection with resales of any common stock or common stock
options so purchased) shall not exceed $5,000,000 in the twelve month period
69
commencing on
the date hereof and $2,500,000 in any subsequent twelve month period; and
(d) so long as no
Default or Event of Default shall have occurred and be continuing, the Borrower
may declare and pay regular quarterly cash dividends in respect of its common
stock in an aggregate amount not to exceed (i) $8 million during FQ4 2004 and
(ii) for any fiscal year of the Borrower, 50% of the Excess Cash Flow of the
Borrower and its Subsidiaries for such fiscal year, except that until the first
to occur of (A) the date that is two years from the date hereof and (B) the
Borrower having achieved ratings on the Facilities of at least Baa3 (stable
outlook) and BBB- (stable outlook) by Moody’s and Standard & Poor’s,
respectively, such aggregate amount is not to exceed 45% of the Excess Cash
Flow of the Borrower and its Subsidiaries for such fiscal year; provided that
in each case, after giving effect to such payment, the Borrower shall be in
compliance with the provisions of Section 7.1;
7.7
Limitation on Investments
. Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any
Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting an ongoing business from, or make any other investment in,
any other Person (all of the foregoing, “
Investments
”), except:
(a) extensions of trade
credit in the ordinary course of business;
(b) Investments in Cash
Equivalents;
(c) Investments arising
in connection with the incurrence of Indebtedness permitted by Section 7.2(b)
and (e);
(d) loans and advances
to employees of the Borrower or any Subsidiaries of the Borrower in the
ordinary course of business (including, without limitation, for travel,
entertainment and relocation expenses) in an aggregate amount for the Borrower
and Subsidiaries of the Borrower not to exceed $3,000,000 at any one time
outstanding;
(e) Investments in
assets useful in the Borrower’s business made by the Borrower or, if the
applicable Recovery Event related to assets of a Subsidiary, by any of its
Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(f) Investments (other
than those relating to the incurrence of Indebtedness permitted by Section
7.7(c)) by the Borrower or any of its Subsidiaries in the Borrower;
(g) Investments in respect
of Permitted Acquisitions;
(h) in addition to
Investments otherwise expressly permitted by this Section, Investments by the
Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not
to exceed $10,000,000 during the term of this Agreement;
70
(i) Investments
existing on the date hereof and described on Schedule 7.7, including the
receipt of any additional securities constituting payment in kind on such
existing Investments;
(j) Investments in
obligations arising out of bankruptcy of customers and suppliers;
(k) Investments of the
Borrower or any Subsidiary of the Borrower in any Subsidiary of the Borrower or
any Excluded Subsidiary; provided that Investments of the Borrower permitted
pursuant to this Section 7.7(k) (which shall include any Letters of Credit
issued for the account (or otherwise to support obligations) of any Subsidiary
or any Excluded Subsidiary) and any Indebtedness of any Subsidiary owing to the
Borrower permitted pursuant to Section 7.2) shall not at any time exceed $60,000,000
in the aggregate (or if as of the date of such Investment the Facilities are
rated at least Baa3 (stable outlook) and BBB- (stable outlook) by Moody’s and
Standard & Poor’s, respectively, then $90,000,000 in the aggregate) in each
case net of any return of capital (or repayment of principal) actually received
by the Borrower; and
(l) Investments arising
out of non-cash consideration received in connection with Dispositions
permitted under Section 7.5(f) or (g);
provided
that,
notwithstanding the foregoing, the Borrower shall not, and shall not permit any
Subsidiary to, make any Investment in any Excluded Subsidiary nor create,
incur, assume or suffer to exist any Guarantee Obligation with respect to any
Excluded Subsidiary other than as permitted in clause (k) above.
7.8
Limitation on Optional Payments and
Modifications
of Debt Instruments, etc
. (a) At any time during the existence of a
Default or an Event of Default, make or offer to make any optional or voluntary
payment, prepayment, repurchase or redemption of, or otherwise voluntarily or
optionally defease, the Senior Notes or any first mortgage bonds issued and
outstanding under an Indenture, or segregate funds for any such payment,
prepayment, repurchase, redemption or defeasance, or enter into any derivative
or other transaction with respect to the Senior Notes or any first mortgage
bonds with any Derivatives Counterparty obligating the Borrower or any
Subsidiary to make payments to such Derivatives Counterparty as a result of any
change in market value of the Senior Notes or any first mortgage bonds issued
and outstanding under an Indenture other than any payment or repurchase thereof
solely in exchange for common stock of the Borrower, (b) amend, modify or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms of the
Senior Notes or any first mortgage bonds issued and outstanding under an
Indenture the effect of which is (i) to shorten the maturity or the average
life of the principal thereof, (ii) to expand (or add) any obligation
thereunder to make any mandatory prepayments of principal thereof, (iii) to
increase the yield thereon (by increasing the rate of interest applicable
thereto or otherwise) or to accelerate the date for payment of interest thereon
or (iv) to amend (or add) any covenant or other restriction applicable to the
Borrower or any of its Subsidiaries thereunder if, after giving effect to such
amendment, the terms of the Senior Notes or such first mortgage bonds are more
onerous, taken as a whole, than the terms hereof, or (c) amend its certificate of incorporation in any manner determined
by the Administrative Agent to be adverse to the Lenders.
71
7.9
Limitation on Transactions with
Affiliates
. Other than any
transaction set forth on Schedule 7.9, enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of Property, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than the Borrower and its Subsidiaries but
including, without limitation, each Excluded Subsidiary) unless such
transaction is (a) otherwise permitted
under this Agreement, (b) in the ordinary
course of business of the Borrower or such Subsidiary, as the case may be, and
(c) upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary, as the case may be, than it
would obtain in a comparable arm’s length transaction with a Person that is not
an Affiliate.
7.10
Limitation on Release of Mortgaged
Property
; Limitation in Respect of Insurance
. Release Mortgaged and Pledged Property (as
defined in the Montana First Mortgage Indenture) from the Lien of the Montana
First Mortgage Indenture or Mortgaged Property (as defined in the South Dakota
First Mortgage Indenture) from the Lien of the South Dakota First Mortgage
Indenture, other than (i) releases of such Mortgaged and Pledged Property
pursuant to and in accordance with Sections 58 and 60 of the Montana First
Mortgage Indenture; (ii) releases of such Mortgaged Property pursuant to and in
accordance with Section 8.02 of the South Dakota First Mortgage Indenture other
than clause (f) thereof; (iii) releases of property or other assets that are
disposed of in accordance with Section 7.5(i) and, if in connection with any
such disposition and the related release, the Borrower deposits with the
trustee under an Indenture cash that would otherwise constitute Net Cash
Proceeds, releases of such cash pursuant to and in accordance with such
Indenture; and (iv) releases of property, insurance proceeds (and/or moneys of
the Borrower in lieu thereof or in addition thereto) and/or other cash or other
assets that are permitted by the terms of the Indentures;
provided
,
however
,
that (A) property (other than cash or Cash Equivalents) released as
contemplated in this clause (iv) shall be promptly disposed of after such
release in accordance with Section 7.5(i) or 7.5(k) and (B) cash or Cash
Equivalents that have been released shall be treated as Net Cash Proceeds from
Assets Sales and applied (or reinvested) as required pursuant to Section 2.12;
provided
,
further
,
however
, that the Borrower shall not request or receive
any proceeds of any insurance or of any alternative method or plan of
protection of the Borrower relating to the Mortgaged Property otherwise payable
to it pursuant to Section 6.07(b) of the South Dakota First Mortgage Indenture,
and so long as any First Mortgage Bonds are outstanding, no effect shall be
given to (x) Section 6.07(b) of the South Dakota First Mortgage Indenture, (y)
the language in Section 6.07(c) of the South Dakota First Mortgage Indenture
which precedes clause (i) of such Section, or (z) the reference to Section
6.07(b) of the South Dakota First Mortgage Indenture which appears in Section
6.07(d) of the South Dakota First Mortgage Indenture;
provided
,
further
,
however
, that the Borrower shall not release Mortgaged Property (as
defined in the South Dakota First Mortgage Indenture) from the Lien of the
South Dakota First Mortgage Indenture pursuant to Section 8.03 of the South
Dakota First Mortgage Indenture.
7.11
Limitation on Subjecting Property
or Other Assets
to the Lien of the Other Indenture
. Subject any property or other assets to the
Lien of the Montana First Mortgage Indenture or the Lien of the South Dakota
First Mortgage Indenture if such property or other assets are subject to the
lien of the other Indenture.
7.12
Prohibition on Designating Class
“A” Mortgages or Permitting Qualified Lien Bonds to Exist
. Designate any Class “A” Mortgage under the
South Dakota First Mortgage
72
Indenture or permit any
Qualified Lien Bonds to exist under the Montana First Mortgage Indenture.
7.13
Limitation on Amendments or
Supplements
to the Indentures
.
Amend, modify or supplement the Montana First Mortgage Indenture or the
South Dakota First Mortgage Indenture, except to (a) supplement such Indenture
to establish the terms of any series of first mortgage bonds to be issued
thereunder that are permitted to be issued under Section 7.2, (b) amend or
supplement such Indenture for the purpose of conveying, transferring or
assigning to the trustee thereunder additional property (or confirming the
conveyance, transfer or assignment to the trustee thereunder) for the purpose
of subjecting such property to the lien of such Indenture (or confirming,
approving, perfecting or maintaining the Lien of such Indenture on any
property), subject to the terms of Section 7.11, (c) amend or supplement such
Indenture, in the case of the Montana First Mortgage Indenture, pursuant to and
as permitted by Section 120 thereof or, in the case of the South Dakota First
Mortgage Indenture, pursuant and as permitted by Section 14.01 thereof, in each
case so long as such amendment or supplement will not adversely affect the
First Mortgage Bonds in any material respect, or (d) amend or supplement such
Indenture, in the case of the Montana First Mortgage Indenture, pursuant to and
as permitted by Article XIX thereof or, in the case of the South Dakota First
Mortgage Indenture, pursuant and as permitted by Section 14.02 thereof, in each
case so long as such amendment or supplement is otherwise not prohibited
hereunder and does not, and could not reasonably be expected to, cause a
Material Adverse Effect or otherwise adversely affect, in any material respect,
interests of the Collateral Agent as holder of the First Mortgage Bonds issued
under such Indenture or the benefits of the security intended to be afforded to
the First Mortgage Bonds under such Indenture.
7.14
Prohibition on Second Mortgage
Bonds
. Issue any bonds (or other
Indebtedness) that is secured by a Lien (subordinate to the Lien of either
Indenture) on the property or other assets subject to the Lien of such
Indenture.
7.15
Limitation on Changes
in Fiscal Periods
. Permit the fiscal year of the Borrower to end
on a day other than December 31 or change the Borrower’s method of determining
fiscal quarters.
7.16
Limitation on Negative Pledge
Clauses
. Enter into or suffer to
exist or become effective any agreement that prohibits or limits the ability of
the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations other than (a) this Agreement and the other Loan Documents,
(b) the Indentures, (c) the Senior Notes, (d) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby
(in which case, any prohibition or limitation shall only be effective against
the assets financed thereby) and (e) any other agreement listed on
Schedule 7.16.
7.17
Limitation on Restrictions
on
Subsidiary Distributions
. Enter into
or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in respect of any Capital Stock of such
Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any other
Subsidiary, (b) make Investments in the
Borrower or any other Subsidiary or (c)
transfer any of its assets to the
73
Borrower or any other
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (i) any restrictions existing
under the Loan Documents, (ii) any restrictions existing under the Indentures,
(iii) any restrictions existing under the Senior Notes and (iv) any restrictions with respect to a Subsidiary
imposed pursuant to an agreement that has been entered into in connection with
the Disposition of all or substantially all of the Capital Stock or assets of
such Subsidiary.
7.18
Limitation on Lines of
Business
. Enter into any business, either directly or
through any Subsidiary, except for those businesses in which the Borrower and
its Subsidiaries are engaged on the date of this Agreement or that are
reasonably related thereto.
7.19
Limitation on Hedge Agreements
. Enter into any Hedge Agreement (or any
commodity contract or similar arrangements providing for protection against
fluctuations in commodity prices, either generally or under specific
contingencies) other than such agreements, contracts or arrangements entered
into in the ordinary course of business, and not for speculative purposes, to
protect against changes in interest rates, commodity prices or foreign exchange
rates.
If any of the
following events shall occur and be continuing:
(a) the Borrower shall
fail to pay any principal of any Loan or Reimbursement Obligation when due in
accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any Loan or Reimbursement Obligation, or any other amount payable
hereunder or under any other Loan Document, within five days after any such
interest or other amount becomes due in accordance with the terms hereof or
thereof; or
(b) any representation
or warranty made or deemed made by the Borrower herein or in any other Loan
Document or that is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with this
Agreement or any such other Loan Document shall prove to have been inaccurate
in any material respect on or as of the date made or deemed made or furnished;
or
(c) the Borrower shall
default in the observance or performance of any agreement contained in clause
(i) or (ii) of Section 6.4 (a) (with respect to the Borrower only) or Section 7
of this Agreement; or
(d) the Borrower shall
default in the observance or performance of any other agreement contained in
this Agreement or any other Loan Document (other than the Supplemental
Indentures), other than as provided in paragraphs (a) through (c) of this
Section, and such default shall continue unremedied for a period of 30 days; or
(e) the Borrower or any
of its Subsidiaries shall (i) default in
making any payment of any principal of, or interest on, any Indebtedness
(including, without limitation, any Guarantee Obligation, but excluding the
Loans and Reimbursement Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created; or (ii) default in the
observance or
74
performance of
any other agreement or condition relating to any such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or beneficiary of
such Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such Indebtedness
to become due prior to its stated maturity or to become subject to a mandatory
offer to purchase by the obligor thereunder or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become payable;
provided
,
that a default, event or condition described in clause (i) or (ii) of this
paragraph (e) shall not at any time constitute an Event of Default unless, at
such time, one or more defaults, events or conditions of the type described in
clauses (i) and (ii) of this paragraph (e) shall have occurred and be continuing
with respect to Indebtedness the outstanding principal amount of which exceeds
in the aggregate $15,000,000; or
(f) (i) the
Borrower or any of its Subsidiaries shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or the Borrower or any of its
Subsidiaries shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against
the Borrower or any of its Subsidiaries any case, proceeding or other action of
a nature referred to in clause (i) above that (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against the
Borrower or any of its Subsidiaries any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets that results in the
entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) the Borrower or any of
its Subsidiaries shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) (i) any Person shall
engage in any “prohibited transaction” (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (ii)
any “accumulated funding deficiency” (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, or any Lien in
favor of the PBGC or a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA
in an involuntary
75
or distress termination,
(iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders shall be likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such
events or conditions, if any, could, in the sole judgment of the Required Lenders,
reasonably be expected to have a Material Adverse Effect; or
(h) one or more
judgments or decrees shall be entered against the Borrower or any of its
Subsidiaries involving for the Borrower and its Subsidiaries taken as a whole a
liability (to the extent not covered by insurance as to which the relevant
insurance company has acknowledged coverage) of $15,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(i) any of the Security
Documents or either Indenture shall cease, for any reason, to be in full force
and effect, or the Borrower or any Subsidiary of the Borrower shall so assert,
or any Lien created by any of the Security Documents or either Indenture shall
cease to be enforceable and of the same effect and priority purported to be
created thereby other than with respect to collateral which is, in the
aggregate,
de minimus
; or
(j) there shall occur
an “Event of Default” under the South Dakota First Mortgage Indenture or the
Senior Note Indenture or a “Default” under the Montana First Mortgage
Indenture;
provided
that the waiver or cure of such “Event of Default”
under the South Dakota First Mortgage Indenture or such “Default” under the
Montana First Mortgage Indenture, as the case may be, and the rescission and
annulment of the consequences thereof under such Indenture will constitute a
cure of the corresponding Event of Default hereunder and a rescission or
annulment of the consequences thereof; or
(k) any Change of
Control shall occur; or
(l) the Confirmation
Order is vacated or modified after the date hereof in any manner that could
reasonably be expected to (i) materially and adversely effect the Borrower’s
ability to perform its obligations under the Loan Documents, or (ii) adversely
affect the Lenders;
then, and in any such event, (A) if such
event is an Event of Default specified in clause (i) or (ii) of paragraph (f)
above with respect to the Borrower, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement and the other Loan Documents
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i)
with the consent of the Majority Revolving Credit Facility Lenders, the
Administrative Agent may, or upon the request of the Majority Revolving Credit
Facility Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Revolving Credit Commitments to be terminated forthwith, whereupon
the Revolving Credit Commitments shall immediately terminate; and (ii) with the consent of the Required Lenders,
the
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Administrative Agent may, or upon the request
of the Required Lenders, the Administrative Agent shall, by notice to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement and the other Loan Documents to be due
and payable forthwith, whereupon the same shall immediately become due and
payable. In the case of all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired face amount
of such Letters of Credit. Amounts held
in such cash collateral account shall be applied by the Administrative Agent to
the payment of drafts drawn under such Letters of Credit, and the unused
portion thereof after all such Letters of Credit shall have expired or been
fully drawn upon, if any, shall be applied to repay other obligations of the
Borrower hereunder and under the other Loan Documents. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have been
satisfied and all other obligations of the Borrower hereunder and under the
other Loan Documents shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrower (or such other Person
as may be lawfully entitled thereto).
9.1
Appointment
. Each Lender hereby irrevocably designates and
appoints the Agents (for the purposes of this Section 9 the term “Agents” shall
also include any Issuing Lender acting in its capacity as such) as the agents
of such Lender under this Agreement and the other Loan Documents, and each
Lender irrevocably authorizes each Agent, in such capacity, to take such action
on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to such Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision
to the contrary elsewhere in this Agreement, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against any Agent.
9.2
Delegation of Duties
. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No
Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
9.3
Exculpatory Provisions
. Neither any Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the
foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its or such Person’s own gross
negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
77
by the Agents under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of the Borrower to
perform its obligations hereunder or thereunder. The Agents shall not be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Borrower.
9.4
Reliance by Agents
. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by such Agent. The
Agents may deem and treat the payee of any Note as the owner thereof for all
purposes unless such Note shall have been transferred in accordance with
Section 10.7 and all actions required by such Section in connection with such
transfer shall have been taken. Each
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by
this Agreement) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such
action. Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other
instructing group of Lenders specified by this Agreement), and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders and all future holders of the Loans.
9.5
Notice of Default
. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent shall have received notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a “notice of default”. In
the event that the Administrative Agent shall receive such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders or any other instructing group of Lenders specified by this Agreement);
provided
that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
9.6
Non-Reliance on Agents and Other
Lenders
. Each Lender expressly
acknowledges that neither any of the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of the Borrower or any
affiliate of the Borrower, shall be deemed to constitute any representation or
78
warranty by any Agent to any
Lender. Each Lender represents to the
Agents that it has, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and its affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without
reliance upon any Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower and its
affiliates. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects
or creditworthiness of the Borrower or any affiliate of the Borrower that may
come into the possession of such Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7
Indemnification
. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans shall
have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), for, and to save each Agent
harmless from and against, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing;
provided
that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent’s gross
negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.
9.8
Agent in Its Individual Capacity
. Each Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of business with the
Borrower or any of its Subsidiaries as though such Agent were not an Agent. With respect to its Loans made or renewed by
it and with respect to any Letter of Credit issued or participated in by it,
each Agent shall have the same rights and powers under this Agreement and the
other Loan Documents as any Lender and may exercise the same as though it were
not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in
its individual capacity.
79
(a) The
Administrative Agent may resign as Administrative Agent upon 10 days’ notice to
the Lenders and the Borrower. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall (unless an Event of Default under Section 8(a) or Section 8(f) with
respect to the Borrower shall have occurred and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent, and the term “Administrative Agent”
shall mean such successor agent effective upon such appointment and approval,
and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans.
If no successor agent has accepted appointment as Administrative Agent
by the date that is 10 days following a retiring Administrative Agent’s notice
of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above.
(b) The
Syndication Agent may, at any time, by notice to the Lenders and the
Administrative Agent, resign as Syndication Agent hereunder, whereupon the
duties, rights, obligations and responsibilities of the Syndication Agent
hereunder shall automatically be assumed by, and inure to the benefit of, the
Administrative Agent, without any further act by the Syndication Agent, the
Administrative Agent or any Lender.
(c) The
Collateral Agent may resign as Collateral Agent upon 10 days’ notice to the
Lenders and the Borrower. If the
Collateral Agent shall resign as Collateral Agent under this Agreement and the
other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall (unless
an Event of Default under Section 8(a) or Section 8(f) with respect to the
Borrower shall have occurred and be continuing) be subject to approval by the
Borrower (which approval shall not be unreasonably withheld or delayed). Upon any such appointment of a successor
Collateral Agent and the transfer to such successor Collateral Agent of First
Mortgage Bonds, together with any instruments reasonably requested by the
Administrative Agent or the Lenders to confer or confirm the successor
Collateral Agent’s rights in the First Mortgage Bonds, such successor agent
shall succeed to the rights, powers and duties of the Collateral Agent, and the
term “Collateral Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Collateral Agent’s rights, powers and
duties as Collateral Agent shall be terminated, without any other or further
act or deed on the part of such former Collateral Agent or any of the parties
to this Agreement or any holders of the Loans.
If no successor agent has accepted appointment as Collateral Agent by
the date that is 10 days following a retiring Collateral Agent’s notice of
resignation, the retiring Collateral Agent’s resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the
duties of the Collateral Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.
80
(d) After
any retiring Agent’s resignation as Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement and the other Loan Documents.
9.10
The
Arrangers
; the Syndication Agent; the Co-Documentation Agents
. Neither the Arrangers, the Syndication Agent
nor the Co-Documentation Agents, in their respective capacities as such, shall
have any duties or responsibilities, and shall incur no liability, under this
Agreement and the other Loan Documents.
10.1
Amendments and Waivers
. Neither this Agreement or any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The Required Lenders and the Borrower may, or
(with the written consent of the Required Lenders) the Administrative Agent (or
the Collateral Agent, as applicable) and the Borrower may, from time to time, (a) enter into written amendments, supplements
or modifications hereto and to the other Loan Documents (including amendments
and restatements hereof or thereof) for the purpose of adding any provisions to
this Agreement or the other Loan Documents or changing in any manner the rights
of the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such terms and conditions as may
be specified in the instrument of waiver, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and
its consequences;
provided
,
however
, that no such waiver and no
such amendment, supplement or modification shall, without the consent of the
requisite Lenders specified below:
(i) forgive the
principal amount or extend the final scheduled date of maturity of any Loan or
Reimbursement Obligation, extend the scheduled date of any amortization payment
in respect of any Term Loan, reduce the stated rate of any interest or fee
payable under this Agreement (except (x) in connection with the waiver of
applicability of any post-default increase in interest rates (which waiver
shall be effective with the consent of the Majority Facility Lenders of each
adversely affected Facility) and (y) that any amendment or modification of
defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this
clause (i)) or extend the scheduled date of any payment thereof, or increase
the amount or extend the expiration date of any Commitment of any Lender, in
each case without the consent of each Lender directly affected thereby;
(ii) amend, modify or
waive any provision of this Section or reduce any percentage specified in the
definition of Required Lenders or Required Prepayment Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, release all or substantially
all of the Collateral, in each case without the consent of all the Lenders;
(iii) amend, modify or
waive any condition precedent to any extension of credit under the Revolving
Credit Facility set forth in Section 5.3 (including,
81
without
limitation, the waiver of an existing Default or Event of Default required to
be waived in order for such extension of credit to be made) without the consent
of the Majority Revolving Credit Facility Lenders;
(iv) reduce the
percentage specified in the definition of Majority Facility Lenders with
respect to any Facility without the consent of all of the Lenders under such
Facility;
(v) amend, modify or waive
any provision of Section 9, or any other provision affecting the rights, duties
or obligations of any Agent, without the consent of any Agent directly affected
thereby;
(vi) amend, modify or
waive any provision of Section 2.6 or 2.7 without the consent of the Swing Line
Lender or alter its rights or obligations with respect to the Swing Line Loans;
(vii) amend, modify or
waive any provision of Section 2.12 without the consent of the Required
Prepayment Lenders;
(viii) amend, modify or
waive any provision of Section 2.18 or 10.8 without the consent of each Lender
directly affected thereby;
(ix) amend, modify or
waive any provision of Section 3 without the consent of each Issuing Lender
affected thereby; or
(x) impose restrictions
on assignments and participations that are more restrictive than, or additional
to, those set forth in Section 10.7 without the consent of all the Lenders.
Notwithstanding the foregoing, any reduction
in the Applicable Margin with respect to any Facility shall require the consent
of all of the Lenders under such Facility and shall not require the consent or
approval of any other Lender.
Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Borrower, the Lenders, the Agents and all future holders of
the Loans. In the case of any waiver,
the Borrower, the Lenders and the Agents shall be restored to their former
position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. Any such waiver, amendment, supplement or
modification shall be effected by a written instrument signed by the parties
required to sign pursuant to the foregoing provisions of this Section;
provided
,
that delivery of an executed signature page of any such instrument by facsimile
or email transmission shall be effective as delivery of a manually executed
counterpart thereof.
For the
avoidance of doubt, this Agreement and any other Loan Document may be amended
(or amended and restated) with the written consent of the Required Lenders, the
Administrative Agent and the Borrower (x) to add one or more additional credit
facilities to this
82
Agreement and
to permit the extensions of credit from time to time outstanding thereunder and
the accrued interest and fees in respect thereof (collectively, the “
Additional
Extensions of Credit
”) to share ratably in the benefits of this Agreement
and the other Loan Documents with the Term Loans and Revolving Extensions of
Credit and the accrued interest and fees in respect thereof and (y) to include
appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders, Required Prepayment Lenders and Majority Revolving
Facility Lenders;
provided
,
however
, that no such amendment shall
permit the Additional Extensions of Credit to share ratably with or with
preference to the Loans in the application of mandatory prepayments without the
consent of the Required Prepayment Lenders.
10.2
First Mortgage Bonds
. The parties hereto acknowledge and agree that
(i) the Collateral Agent and the Administrative Agent are hereby authorized by
the Lenders to give to the trustees under the Indentures notices (and other
information) and to take such other actions as are required by, or specified
in, the Supplemental Indentures (as in effect on the date hereof or as may be
amended from time to time with the consent of the Administrative Agent and the
Collateral Agent) and/or the Bond Delivery Agreement to be given or taken by
them (and the Collateral Agent and the Administrative Agent agree to comply
with such terms) and (ii) the Collateral Agent shall have such rights under and
in respect of the First Mortgage Bonds and the Indentures as are provided or
referred to in the Bond Delivery Agreement (including voting rights referred to
in Sections 4.1 and 6.1 thereof).
Payments actually received by the Collateral Agent with respect to any
First Mortgage Bonds shall be turned over to the Administrative Agent and shall
be distributed by the Administrative Agent, in accordance with the terms
hereof, as follows, (i) in the case of any payment actually received under the
Revolving Credit First Mortgage Bonds, to the Revolving Credit Lenders (and, in
the case of amounts constituting cash collateral for outstanding Letters of Credit,
to the Administrative Agent) pro rata in payment of the Obligations
constituting the basis upon which such payment was calculated and made and (ii)
in the case of any payment actually received under the Term Loan First Mortgage
Bonds, to the Term Loan Lenders pro rata in payment of the Obligations
constituting the basis upon which such payment was calculated and made. Notwithstanding the foregoing, in the event
that any costs, expenses or losses of the Administrative Agent or the
Collateral Agent in connection with the Loan Documents or their respective
administration or enforcement (or any other amount for which demand for
indemnification may be made pursuant to Section 9.7) are then outstanding (and
without in any way adversely affecting the Borrower’s obligations pursuant to
Section 10.6 or otherwise), the Administrative Agent (on behalf of itself or
the Collateral Agent) shall have the right in its sole discretion to deduct
from such proceeds for such outstanding amounts to the extent permitted and in
accordance with Section 9.7.
10.3
Notices
. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed (a) in the case
of the Borrower and the Agents, as follows and (b)
in the case of the Lenders, as set forth in an administrative questionnaire
delivered to the Administrative Agent or on Schedule I to the Lender Addendum
to which such Lender is a party or, in the case of a Lender which becomes a
party to this Agreement pursuant to an Assignment and Acceptance, in such
Assignment and Acceptance or (c) in the
case of any party, to such other address as such party may hereafter notify to
the other parties hereto:
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The Borrower:
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Northwestern Corporation
125 S. Dakota Avenue,. Suite 1100
Sioux Falls, South Dakota 57104
Attention: Brian Bird
Chief
Financial Officer
Telecopy: (605) 978-2909
Telephone: (605) 978-2910
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with a copy to:
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Northwestern Corporation
125 S. Dakota Avenue, Suite 1100
Sioux Falls, South Dakota 57104
Attention: General Counsel
Telecopy: (605) 978-2908
Telephone: (605) 978-2845
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and
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Paul, Hastings, Janofsky & Walker, LLP
600 Peachtree Street, N.E., Suite 2400
Atlanta, Georgia 30308
Attention: Jesse H. Austin, III
Kevin
Conboy
Telecopy: (404) 815-2424
Telephone: (404) 815-2400
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The Syndication Agent:
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Deutsche Bank Securities Inc.
60 Wall Street, NYC 60-4301
New York, New York 10005
Attention: Marcus Tarkington
Telecopy: (212)797-5694
Telephone: (212)250-6143
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The Administrative Agent:
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Lehman Commercial Paper Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Brian McNany
Telecopy: (212) 526-6643
Telephone: (212) 526-6590
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The Collateral Agent:
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Lehman Commercial Paper Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Craig J. Malloy
Telecopy: (646) 758-4617
Telephone: (212) 526-7150
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With a copy to:
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Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Attention: Gregory Owens, Esq.
Telecopy: (212) 259-6333
Telephone: (212) 259-6823
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Issuing Lender:
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As notified by such Issuing Lender to the
Administrative Agent and the Borrower
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Swing Line Lender:
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Lehman Commercial Paper Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Brian McNany
Telecopy: (212) 526-6643
Telephone: (212) 526-6590
|
provided
that any
notice, request or demand to or upon the any Agent, any Issuing Lender or any
Lender shall not be effective until received.
Notices and
other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative
Agent;
provided
that the foregoing shall not apply to notices pursuant
to Section 2 unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative
Agent or the Borrower may, in its reasonable discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it;
provided
that approval of such
procedures may be limited to particular notices or communications.
10.4
No Waiver;
Cumulative Remedies
. No failure
to exercise and no delay in exercising, on the part of any Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
10.5
Survival of Representations and
Warranties
. All representations
and warranties made herein, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of
the Loans and other extensions of credit hereunder.
10.6
Payment of Expenses
. The Borrower agrees (a) to pay or reimburse the Agents for all their reasonable out-of-pocket
costs and expenses incurred in connection with the syndication of the
Facilities (other than fees payable to syndicate members) and the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection
85
herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements
and other charges of counsel to the Administrative Agent and the charges of
Intralinks, (b) to pay or reimburse the
Agents and any Issuing Lender and, if incurred during the continuance of an
Event of Default, each Lender for all their costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and disbursements and
other charges of in-house counsel) to each Lender, each Issuing Lender and of
counsel to the Agents, (c) to pay,
indemnify, or reimburse each Lender, each Issuing Lender and the Agents for,
and hold each Lender, each Issuing Lender and the Agents harmless from, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d)
to pay, indemnify or reimburse each Lender, each Issuing Lender, each Agent,
their respective affiliates, and their respective officers, directors,
trustees, employees, advisors, agents and controlling persons (each, an “
Indemnitee
”)
for, and hold each Indemnitee harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
incurred by an Indemnitee or asserted against any Indemnitee by any third party
or by the Borrower arising out of, in connection with, or as a result of (i)
the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto or thereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by any Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Materials of Environmental
Concern on or from any property owned, occupied or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries or any or their respective properties,
or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by any third party or by the Borrower, and
regardless of whether any Indemnitee is a party thereto (all the foregoing in
this clause (d), collectively, the “
Indemnified Liabilities
”),
provided
,
that the Borrower shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities to the extent such Indemnified Liabilities
are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of such Indemnitee. No Indemnitee shall
be liable for any damages arising from the use by unauthorized persons of
information, data, reports or other materials sent through electronic,
telecommunications or other information transmission systems that are
intercepted by such persons (unless it is finally judicially determined that
such interception was directly a result of the gross negligence or willful
misconduct of such Indemnitee) or for any special, indirect, consequential or
punitive damages in connection with the Facilities. Without limiting the
86
foregoing, and to the extent
permitted by applicable law, the Borrower agrees not to assert and to cause its
Subsidiaries and the Excluded Subsidiaries not to assert, and hereby waives and
agrees to cause its Subsidiaries so to waive, all rights for contribution or
any other rights of recovery with respect to all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind
or nature, under or related to Environmental Laws, that any of them might have
by statute or otherwise against any Indemnitee.
All amounts due under this Section shall be payable not later than 30
days after written demand therefor.
Statements payable by the Borrower pursuant to this Section shall be
submitted to Brian Bird (Telephone No.(605) 978-2909) (Fax No. (605) 978-2910),
at the address of the Borrower set forth in Section 10.3, or to such other
Person or address as may be hereafter designated by the Borrower in a notice to
the Administrative Agent. The agreements
in this Section shall survive repayment of the Loans and all other amounts
payable hereunder.
10.7
Successors and Assigns
; Participations
and Assignments
. (a) This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lenders, the Agents, all future
holders of the Loans and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of the Agents and each Lender.
(b) Any
Lender may, in the ordinary course of its business, without the consent of the
Borrower, in accordance with applicable law, at any time sell to one or more
banks, financial institutions or other entities (each, a “
Participant
”)
participating interests in any Loan owing to such Lender, any Commitment of
such Lender or any other interest of such Lender hereunder and under the other
Loan Documents. In the event of any such
sale by a Lender of a participating interest to a Participant, such Lender’s
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Agents shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement
and the other Loan Documents. In no
event shall any Participant under any such participation have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would require the consent of all Lenders
pursuant to Section 10.1. The Borrower
agrees that if amounts outstanding under this Agreement and the Loans are due
or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall, to the
maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement,
provided
that, in purchasing such participating interest, such Participant shall be
deemed to have agreed to share with the Lenders the proceeds thereof as
provided in Section 10.8(a) as fully as if such Participant were a Lender
hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and
2.21 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if such Participant were a Lender;
provided
that, in the case of Section 2.20, such Participant shall have complied with
the requirements of said Section, and
provided
,
further
, that no
Participant shall be entitled to receive any greater amount pursuant to any
such Section than
87
the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) Any
Lender (an “
Assignor
”) may, in the ordinary course of its business, in
accordance with applicable law and upon written notice to the Administrative Agent,
at any time and from time to time assign to any Lender or any affiliate,
Related Fund or, with the consent of the Borrower and the Administrative Agent
and, in the case of any assignment of Revolving Credit Commitments, the written
consent of the Issuing Lender and the Swing Line Lender (which, in each case,
shall not be unreasonably withheld or delayed) (
provided
(x)
that no consent from the applicable parties need be obtained by any Lehman
Entity or by any Deutsche Bank Entity in their capacity as Assignors (other
than, solely in the
case of any assignment of Revolving Credit Commitments, the consent of the
Issuing Lender and the Swing Line Lender (which, in each case, shall not be
unreasonably withheld or delayed)) and (y) the consent of the Borrower need not
be obtained with respect to any assignment of Term Loans), to an additional
bank, financial institution or other entity (an “
Assignee
”) all or any
part of its rights and obligations under this Agreement pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit E, executed by
such Assignee and such Assignor (and, where the consent of the Borrower, the
Administrative Agent , the Issuing Lender or the Swing Line Lender is required
pursuant to the foregoing provisions, by the Borrower and such other Persons)
and delivered to the Administrative Agent for its acceptance and recording in
the Register;
provided
that (A) with respect to assignments of Revolving
Credit Commitments, no such assignment to an Assignee (other than any Lender or
any Affiliate or Related Fund thereof) shall be in an aggregate principal
amount of less than $5,000,000 (other than in the case of an assignment of all
of a Lender’s interests under this Agreement) and, after giving effect thereto,
such Assignor shall have Revolving Credit Commitments and Revolving Credit
Loans aggregating at least $5,000,000 (if holding any) and (B) with respect to
assignments of Term Loans, no such assignment to an Assignee (other than any
Lender or any Affiliate or Related Fund thereof) shall be in an aggregate
principal amount of less than $1,000,000 (other than in the case of an
assignment of all of a Lender’s interest under this Agreement) and, after
giving effect thereto, such Assignor shall have Term Loans aggregating at least
$1,000,000 (if such Assignor then holds any Term Loan), in each case unless
otherwise agreed by the Borrower and the Administrative Agent. Any such assignment need not be ratable as
among the Facilities. Upon such
execution, delivery, acceptance and recording, from and after the effective
date determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with Commitments and/or Loans as set forth therein, and (y) the Assignor
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of an Assignor’s rights and obligations
under this Agreement, such Assignor shall cease to be a party hereto, except as
to Section 2.19, 2.20 and 10.6 in respect of the period prior to such effective
date). Notwithstanding any provision of
this Section, the consent of the Borrower shall not be required for any
assignment that occurs at any time when any Event of Default shall have
occurred and be continuing. For purposes
of the minimum assignment amounts and minimum hold amounts set forth in this
paragraph, multiple assignments to or by two or more Related Funds shall be
aggregated.
88
(d) The
Administrative Agent shall, on behalf of the Borrower, maintain at its address
referred to in Section 10.3 a copy of each Assignment and Acceptance delivered
to it and a register (the “
Register
”) for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, each Agent and the Lenders shall treat each
Person whose name is recorded in the Register as the owner of the Loans and any
Notes evidencing such Loans recorded therein for all purposes of this
Agreement. Any assignment of any Loan,
whether or not evidenced by a Note, shall be effective only upon appropriate
entries with respect thereto being made in the Register (and each Note shall
expressly so provide). Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered on
the Register only upon surrender for registration of assignment or transfer of
the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance;
thereupon one or more new Notes in the same aggregate principal amount shall be
issued to the designated Assignee, and the old Notes shall be returned by the
Administrative Agent to the Borrower marked “canceled”. The Register shall be available for
inspection by the Borrower or any Lender (with respect to any entry relating to
such Lender’s Loans) at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon
its receipt of an Assignment and Acceptance executed by an Assignor and an
Assignee (and, in any case where the consent of any other Person is required by
Section 10.7(c), by each such other Person) together with payment by the
applicable Assignor or Assignee to the Administrative Agent of a registration
and processing fee of $3,500 (treating multiple, simultaneous assignments by or
to two or more Related Funds as a single assignment) (except that no such
registration and processing fee shall be payable (y) in connection with an
assignment by or to a Lehman Entity or a Deutsche Bank Entity or (z) in the
case of an Assignee which is already a Lender or is an affiliate or Related
Fund of a Lender or a Person under common management with a Lender), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such
acceptance and recordation to the Borrower.
The Borrower, at its own expense, promptly upon receipt of a request by
the Administrative Agent, shall execute and deliver to the Administrative Agent
(in exchange for the Revolving Credit Note and/or applicable Term Notes, as the
case may be, of the assigning Lender) a new Revolving Credit Note and/or
applicable Term Notes, as the case may be, to the order of such Assignee in an
amount equal to the Revolving Credit Commitment and/or applicable Term Loans,
as the case may be, assumed or acquired by it pursuant to such Assignment and
Acceptance and, if the Assignor has retained a Revolving Credit Commitment
and/or Term Loans, as the case may be, upon request, a new Revolving Credit
Note and/or Term Notes, as the case may be, to the order of the Assignor in an
amount equal to the Revolving Credit Commitment and/or applicable Term Loans,
as the case may be, retained by it hereunder.
Such new Note or Notes shall be dated the effective date of the relevant
assignment and shall otherwise be in the form of the Note or Notes replaced
thereby.
(f) For
avoidance of doubt, the parties to this Agreement acknowledge that the
provisions of this Section concerning assignments of Loans and Notes relate
only to absolute assignments and that such provisions do not prohibit
assignments creating security interests in Loans and Notes, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
89
(g) Notwithstanding anything to the
contrary contained herein, any Lender (a “
Granting Lender
”) may grant to
a special purpose funding vehicle (an “
SPC
”), identified as such in
writing from time to time by the Granting Lender to the Administrative Agent
and the Borrower, the option to provide to the Borrower all or any part of any
Loan that such Granting Lender would otherwise be obligated to make to the
Borrower pursuant to this Agreement;
provided
that (i) nothing herein
shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making
of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Loan were made by such Granting
Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any state thereof. In
addition, notwithstanding anything to the contrary in this Section 10.7(g), any
SPC may (A) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender,
or with the prior written consent of the Borrower and the Administrative Agent
(which consent shall not be unreasonably withheld) to any financial
institutions providing liquidity and/or credit support to or for the account of
such SPC to support the funding or maintenance of Loans, and (B) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC;
provided
that non-public
information with respect to the Borrower may be disclosed only with the
Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without
the written consent of any SPC with Loans outstanding at the time of such
proposed amendment.
10.8
Adjustments; Set-
off
. (a)
Except to the extent that this Agreement provides for payments to be
allocated to a particular Lender or to the Lenders under a particular Facility,
if any Lender (a “
Benefitted Lender
”) shall at any time receive any
payment of all or part of the Obligations owing to it, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender’s
Obligations, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other Lender’s
Obligations, or shall provide such other Lenders with the benefits of any such
collateral, as shall be necessary to cause such Benefitted Lender to share the
excess payment or benefits of such collateral ratably with each of the Lenders;
provided
,
however
, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
90
(b) Upon the occurrence and during the
continuance of an Event of Default, in addition to any rights and remedies of
the Lenders provided by law, each Lender, including without limitation each
Issuing Lender, shall have the right, without prior notice to the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise), to
set off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the
Borrower. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such setoff and
application made by such Lender,
provided
that the failure to give such
notice shall not affect the validity of such setoff and application.
10.9
Counterparts
. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. Delivery of an
executed signature page of this Agreement or of a Lender Addendum by facsimile
or email transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies
of this Agreement signed by all the parties shall be lodged with the Borrower
and the Administrative Agent.
10.10
Severability
. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11
Integration
. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Agents, the Arrangers and
the Lenders with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by any Arranger,
any Agent or any Lender relative to subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
10.12
GOVERNING LAW
.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
10.13
Submission To Jurisdiction; Waiver
s
. The Borrower hereby irrevocably and
unconditionally:
(a) submits for itself and its Property
in any legal action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive
91
general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any
such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Borrower at its
address set forth in Section 10.3 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall
affect the right to effect service of process in any other manner permitted by
law or shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.
10.14
Acknowledgment
s
. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Loan
Documents;
(b) no Arranger, Agent nor any Lender has
any fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Arrangers, the Agents and the Lenders, on one hand,
and the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or
by the other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Arrangers, the Agents and the Lenders or
among the Borrower and the Lenders.
10.15
Confidentialit
y
. Each of the Agents and the Lenders agrees to
keep confidential all non-public information provided or made available to it
by, or on behalf of, the Borrower in connection with this Agreement and the
transactions contemplated hereby;
provided
that nothing herein shall
prevent any Agent or any Lender from disclosing any such information (a) to any Arranger, any Agent, any other Lender
or any affiliate of any thereof, (b) to
any Participant or Assignee (each, a “
Transferee
”) or prospective
Transferee that agrees to comply with the provisions of this Section or
substantially equivalent provisions, (c)
to any of its employees, directors, agents, attorneys, accountants and other
professional advisors, (d) upon the
request or demand of any Governmental Authority or self regulatory organization
having jurisdiction over it, (e) in response to any order of any court or other
Governmental Authority or self regulatory organization or as may otherwise be
required pursuant to any Requirement of
92
Law, (f) in connection with any
litigation or similar proceeding relating to any Obligation, this Agreement,
any other Loan Document, the Indentures, or any transaction contemplated hereby
or thereby, (g) that has been publicly disclosed other than in breach of this
Section, (h) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about a Lender’s investment portfolio in connection with
ratings issued with respect to such Lender or (i) in connection with the
exercise of any remedy hereunder or under any other Loan Document.
Notwithstanding anything to the contrary in the foregoing sentence or any other
express or implied agreement, arrangement or understanding, the parties hereto
hereby agree that, from the commencement of discussions with respect to the
financing provided hereunder, any party hereto (and each of its employees,
representatives, or agents) is permitted to disclose to any and all persons,
without limitation of any kind, the tax structure and tax aspects of the
transactions contemplated hereby, and all materials of any kind (including
opinions or other tax analyses) related to such tax structure and tax aspects.
10.16
Accounting Changes
. In the event that any “Accounting Change” (as
defined below) shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this Agreement, then
the Borrower and the Administrative Agent agree to enter into good faith
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Change with the desired result that the
criteria for evaluating the Borrower’s financial condition shall be the same
after such Accounting Change as if such Accounting Change had not been
made. Until such time as such an
amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. “Accounting Change” refers to any change in
accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants or, if applicable, the SEC.
10.17
Delivery of Lender Addend
a
. Each initial Lender shall become a party to
this Agreement by delivering to the Administrative Agent a Lender Addendum duly
executed by such Lender, the Borrower and the Administrative Agent.
10.18
WAIVERS OF JURY TRIA
L
. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW,
THE BORROWER, THE AGENTS AND THE LENDERS HEREBY
IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
93
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year first above written.
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NORTHWESTERN
CORPORATION,
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as
Borrower
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By:
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/s/
Paul J. Evans
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Name:
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Paul
J. Evans
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Title:
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Treasurer
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LEHMAN
BROTHERS INC.,
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as
Arranger
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By:
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/s/
Jeffrey Abt
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Name:
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Jeffrey
Abt
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Title:
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SVP
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DEUTSCHE
BANK SECURITIES INC.,
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as
Arranger
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By:
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/s/
N. Jansa
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By:
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/s/
Terence Neafsey
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Name:
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N.
Jansa
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Name:
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Terence
Neafsey
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Title:
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Director
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Title:
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UNION
BANK OF CALIFORNIA, N.A.
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as
Co-Documentation Agent
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By:
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/s/
Robert J. Cole
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Name:
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Robert
J. Cole
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Title:
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Vice
President
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KEYBANK
NATIONAL ASSOCIATION
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as
Co-Documentation Agent
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By:
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/s/
Keven R. Smith
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Name:
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Keven
R. Smith
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Title:
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Vice
President
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LEHMAN
COMMERCIAL PAPER INC.,
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as
Administrative Agent
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By:
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/s/
Jeffrey Abt
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Name:
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Jeffrey
Abt
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Title:
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SVP
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LEHMAN
COMMERCIAL PAPER INC.,
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as
Collateral Agent
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By:
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/s/ Jeffrey
Abt
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Name:
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Jeffrey
Abt
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Title:
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SVP
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DEUTSCHE
BANK AG, CAYMAN
ISLANDS BRANCH,
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as
an Initial Lender and as Issuing Lender
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By:
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/s/
Saad Igbal
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Name:
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Saad
Igbal
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Title:
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Vice
President
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By:
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/s/
Marcus M. Tarkington
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Name:
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Marcus
M. Tarkington
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Title:
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Director
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Annex
A
The Commitment Fee Rate and
the Applicable Margin for Revolving Credit Loans shall be, at any time, the
rate per annum set forth in the table below opposite the Facilities rating
Standard & Poor’s Ratings Services and Moody’s Investor Service Inc.
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Applicable Spread for:
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Commitment
Fee
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Rating Levels
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Eurodollar Loans
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Base Rate Loans
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> Baa3 and BBB-
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100
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0
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20
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Baa3 and BBB-
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125
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25
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25
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Ba1 and BB+
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150
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50
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37.5
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Ba2 and BB
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175
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75
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50
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< Ba2 and BB
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175
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75
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50
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For purposes hereof, columns
titled “Eurodollar Loans” and “Base Rate Loans” will be referred to as “Drawn
Cost” and the column titled “Commitment Fee” will be referred to as “Undrawn
Cost.”
With respect to Undrawn Cost
determination, in the event the Borrower secures a split rating, the applicable
Undrawn Cost will be that corresponding to the higher rating. If, however, the split rating is more than
one level of difference, then the Undrawn Cost shall be the rating falling at
the midpoint (or, if no midpoint, then the lower of the midpoint levels).
With respect to Drawn Cost
determination, the following shall apply:
1.
If both ratings qualify as investment grade,
then the Drawn Cost shall be that corresponding to the higher rating.
2.
If one rating is investment grade and the
other rating is non-investment grade, then the Drawn Cost shall be that
corresponding to the lower rating.
3.
If both ratings do not qualify as investment
grade, then the Drawn Cost shall be that corresponding to the lower rating.
4.
If a split rating exists and either (i) one
rating is investment grade and the other rating is non-investment grade, or (ii)
both ratings do not qualify as investment grade and the split rating is more
than one level of difference, then the Drawn Cost shall be the rating falling
at the midpoint (or, if no midpoint, then the lower of the midpoint levels).
