Execution Version
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NORTHWESTERN CORPORATION
(SUCCESSOR TO NORTHWESTERN ENERGY, L.L.C.,
FORMERLY KNOWN AS THE MONTANA POWER, L.L.C.)
TO
THE BANK OF NEW YORK
AND
XXXXXXX X. XxxXXXXX
As Trustees under Mortgage and
Deed of Trust, dated as of October 1, 1945,
with NorthWestern Energy, L.L.C.
(formerly known as The Montana Power, L.L.C.,
successor by merger to The Montana Power Company)
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TWENTY-SECOND SUPPLEMENTAL INDENTURE
Providing, among other things, for the assumption by
NorthWestern Corporation of the due and punctual
payment of all Bonds and performance and observance
of all covenants and conditions of NorthWestern Energy, L.L.C.
under such Mortgage and Deed of Trust,
as amended and supplemented.
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Dated as of November 15, 2002
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TWENTY-SECOND SUPPLEMENTAL INDENTURE
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THIS TWENTY-SECOND SUPPLEMENTAL INDENTURE, dated as of November
15, 2002, 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 000 X. Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000, 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 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (successor to XXXXXX GUARANTY TRUST COMPANY OF NEW YORK) (formerly
Guaranty Trust Company of New York), and XXXXXXX X. XXXXXXXX, whose post office
address is c/o The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (successor to Xxxxxx X. Xxxxx, Xxxx X. Xxxxxxx, X.X. Xxxxx, X. Xxxxxxxx,
X.X. Xxxxxxx and X.X. Xxxxxxxxxx) (said Xxxxxxx X. XxxXxxxx 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 predecessor by merger 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 (successor by merger
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 Xxxxxx
X. Xxxxx, 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-second
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 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 Mortgage and the First, Second, Third, Fourth,
Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth,
Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth and
Twentieth 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 Xxxx X. Xxxxxxx as Co-Trustee in succession to
said Xxxxxx X. Xxxxx, resigned, under the Mortgage and by Xxxx X. Xxxxxxx
accepting the appointment as Co-Trustee under the Mortgage in succession to said
Xxxxxx X. Xxxxx, which instrument was recorded in various counties in the states
of Montana, Idaho and Wyoming; and
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WHEREAS, an instrument dated June 29, 1962 was executed by the
Company-Montana appointing X.X. Xxxxx as Co-Trustee in succession to said Xxxx
X. Xxxxxxx, resigned, under the Mortgage and by X.X. Xxxxx accepting the
appointment as Co-Trustee under the Mortgage in succession to said Xxxx X.
Xxxxxxx, 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 X. Xxxxxxxx as Co-Trustee in succession to said X.X.
Xxxxx, resigned, under the Mortgage and by X. Xxxxxxxx accepting the appointment
as Co-Trustee under the Mortgage in succession to said X.X. Xxxxx, which
instrument was recorded in various counties in the states of Montana, Idaho and
Wyoming; and
WHEREAS, an instrument dated July 1, 1986 was executed by the
Company-Montana appointing X.X. Xxxxxxx as Co-Trustee in succession to said X.
Xxxxxxxx, resigned, under the Mortgage and by X.X Xxxxxxx accepting the
appointment as Co-Trustee under the Mortgage in succession to said X. Xxxxxxxx,
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) X.X. Xxxxxxxxxx as Co-Trustee in succession to
said X.X. Xxxxxxx, resigned, under the Mortgage and X.X. Xxxxxxxxxx accepted the
appointment as Co-Trustee under the Mortgage in succession to said X.X. Xxxxxxx,
and (ii) The Bank of New York as Corporate Trustee in succession to Xxxxxx
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 Xxxxxx 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 Xxxxxxx X. XxxXxxxx as Co-Trustee in succession to
said X.X. Xxxxxxxxxx, resigned, under the Mortgage and by Xxxxxxx X. XxxXxxxx
accepting the appointment as Co-Trustee under the Mortgage in succession to said
X.X. Xxxxxxxxxx, which instrument was recorded in various counties in the states
of Montana, Idaho and Wyoming; and
WHEREAS, in addition to the property described in the Mortgage, the
Company-Montana has acquired certain other property, rights and interests in
property; and
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:
Principal
Amount Principal Amount
Series Issued Outstanding
------ ------ -----------
2-7/8% Series due 1975.......................... $40,000,000 NONE
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Principal
Amount Principal Amount
Series Issued Outstanding
------ ------ -----------
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 2002 (Sixteenth)................... 50,000,000 1,466,000
Secured Medium-Term Notes (Seventeenth)......... 68,000,000 28,000,000
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
which bonds are also hereinafter sometimes called "Bonds of the First through
Twenty-second Series", respectively; and
WHEREAS, the Company-Montana entered into an Agreement and Plan
of Merger, dated as of February 20, 2001, among the Company-Montana, Touch
America Holdings, Inc. (a Delaware corporation and a wholly owned subsidiary of
the Company-Montana), and NorthWestern Energy (under its then name, The Montana
Power, L.L.C.), a wholly owned subsidiary of Touch America Holdings, Inc.,
pursuant to which agreement the Company-Montana was merged into NorthWestern
Energy (under its then name, The Montana Power, L.L.C.), on such terms as fully
preserve and in no respect impair the lien or security of the Indenture on the
mortgaged property or any of the rights or powers of the Trustees or of the
bondholders thereunder; and
WHEREAS, NorthWestern Energy, under its then name of The Montana
Power, L.L.C., executed and delivered the Twenty-first Supplemental Indenture,
dated as of February 13, 2002 (hereinafter called the "Twenty-first Supplemental
Indenture"), for the purpose of evidencing the succession of NorthWestern Energy
(under its then name, The Montana Power, L.L.C.) to the Company-Montana, 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 under the
Indenture and any bonds then issued or to be issued thereunder, and the
succession of NorthWestern Energy (under its then name, The Montana Power,
L.L.C.) to the powers and rights of the Company-Montana under the Indenture and
any bonds now issued or to be issued thereunder, in accordance with the
respective terms
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thereof which Twenty-first Supplemental Indenture was recorded in the official
records of various counties and states as required by the Indenture;
WHEREAS, the Company-Montana merged with The Montana Power,
L.L.C. on February 13, 2002 and thereafter ceased to exist independently;
WHEREAS, The Montana Power, L.L.C. changed its name to
NorthWestern Energy, L.L.C. on March 19, 2002;
WHEREAS, NorthWestern Energy and the Company have entered into
that certain Asset and Stock Transfer Agreement, dated as of November 15, 2002,
providing for the transfer of substantially all of the assets as an entirety and
liabilities of NorthWestern Energy to the Company (the "Transaction"), which
Transaction is expected to be completed on or about the date hereof;
WHEREAS, the Company desires to execute and deliver this
Twenty-second Supplemental Indenture for the purposes of evidencing the
assumption by the Company of the covenants and conditions of NorthWestern Energy
under the Indenture and any bonds now issued or to be issued thereunder, and the
succession of the Company to the powers and rights of NorthWestern Energy under
the Indenture and any bonds now issued or to be issued thereunder, in accordance
with the respective terms thereof;
WHEREAS, the Company expects to record this Twenty-second
Supplemental Indenture in the official records of various counties and states as
required by the Indenture; and
WHEREAS, the execution and delivery by the Company of this
Twenty-second Supplemental Indenture have been duly authorized by the Company by
appropriate Resolutions.
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 Xxxxxxx X. XxxXxxxx, the 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
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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 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
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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 chooses 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 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 XXXXXXX X. XXXXXXXX and (to the extent of its legal
capacity to hold the same for the purposes hereto) unto THE BANK OF NEW YORK, 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-second
Supplemental Indenture being supplemental thereto.
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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 then
owned 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 Indenture,
and (c) such franchises, repairs and additional property as may be acquired,
made or constructed by 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
Covenants and Agreements of the Company
Section 1. The Company hereby expressly assumes the due and
punctual payment of the principal and interest of all the bonds secured by the
Indenture according to their tenor and the due and punctual performance and
observance of all of the covenants and conditions of the Indenture to be kept or
performed by NorthWestern Energy, and the Company herein expressly assumes and
agrees to pay, duly and punctually, the principal of and interest on the bonds
issued under the Indenture in accordance with the provisions of said bonds and
coupons and the Indenture, and agrees to perform and fulfill all the covenants
and conditions of the Indenture to be kept or performed by NorthWestern Energy.
As permitted
8
by Section 86 of the Mortgage, the Company shall be deemed to succeed to and be
substituted for NorthWestern Energy with the same effect as if it had been named
in the Indenture, and shall have and may exercise under the Indenture the same
powers and rights as NorthWestern Energy.
ARTICLE II
Miscellaneous Provisions
Section 1. The terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this Twenty-second Supplemental
Indenture, have the meaning specified in the Mortgage, as heretofore
supplemented.
Section 2. The Trustees hereby accept the trusts 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-second
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-second 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-second
Supplemental Indenture.
Section 3. Whenever in this Twenty-second 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-second 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 4. Nothing in this Twenty-second 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 Outstanding under the Indenture, any right,
remedy or claim under or by reason of this Twenty-second Supplemental Indenture
or any covenant, condition, stipulation, promise or agreement hereof, and all
the covenants, conditions, stipulations, promises and agreements in this
Twenty-second 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.
9
Section 5. This Twenty-second 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 to Follow]
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IN WITNESS WHEREOF, NORTHWESTERN CORPORATION has caused its name
to be hereunto affixed, and this instrument to be signed and sealed by its
President or one of its Vice Presidents, and its seal to be attested by its
Secretary or one of its 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 XXXXXXX X.
XXXXXXXX, for all like purposes, has hereunto set his hand and affixed his seal,
as of the day and year first above written.
[Seal]
NORTHWESTERN CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: SVP, General Counsel and CLO
Attest:
/s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
Executed, sealed and delivered by NORTHWESTERN CORPORATION in the presence of:
/s/ Xxxxxxx Xxxxxx
------------------
/s/ Xxxxx X. Xxxxx
------------------
STATE OF SOUTH DAKOTA )
: ss.
County of MINNEHAHA )
This instrument was acknowledged before me on this 12th day of
November, 2002, by Xxxx X. Xxxxxxxx, SVP, General Counsel and CLO of
NORTHWESTERN CORPORATION, a Delaware corporation.
/s/ Xxxxx X. Xxxxx
------------------------------------
Print Name: Xxxxx X. Xxxxx
Notary Public for the State of South Dakota
Residing at Sioux Falls, South Dakota
My Commission expires 7-12-2005
[SEAL]
THE BANK OF NEW YORK,
as Corporate Trustee
By: /s/ XxxxXxxx Xxxxxxx
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Name: XxxxXxxx Xxxxxxx
Title: Vice President
Attest:
/s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Treasurer
/s/ Xxxxxxx X. XxxXxxxx
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XXXXXXX X. XXXXXXXX, as Co-Trustee
Executed, sealed and delivered
by THE BANK OF NEW YORK and
XXXXXXX X. XXXXXXXX in the presence of:
/s/ Xxxxxx Xxxxxxxxxxx
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/s/ Xxxxxx X. Xxxxxxx
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STATE OF NEW YORK )
: ss.
County of New York )
This instrument was acknowledged before me on this 15th day of
November, 2002, by XxxxXxxx Xxxxxxx, Vice President of Bank of New York,
a New York banking corporation.
/s/ Xxxxxxx X. Xxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxx
Notary Public for the State of New York
Residing at Bronx County, New York
My Commission expires May 18, 2006
[SEAL]
STATE OF NEW YORK )
: ss.
County of New York )
This instrument was acknowledged before me on this 15th day of
November, 2002, by Xxxxxxx X. XxxXxxxx.
/s/ Xxxxxxx X. Xxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxx
Notary Public for the State of New York
Residing at Bronx County, New York
My Commission expires May 18, 2006
[SEAL]
