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THE MONTANA POWER, L.L.C.
TO
THE BANK OF NEW YORK
Trustee
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FIRST SUPPLEMENTAL INDENTURE
(For Unsecured Subordinated Debt Securities
relating to Trust Securities)
Dated as of February 13, 2002
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FIRST SUPPLEMENTAL INDENTURE, dated as of February 13, 2002, between
THE MONTANA POWER, L.L.C., a limited liability company duly organized and
existing under the laws of the State of Montana (herein called the "MPC LLC"),
having its principal office at 00 Xxxx Xxxxxxxx, Xxxxx, Xxxxxxx 00000, and THE
BANK OF NEW YORK, a corporation duly organized and existing as a banking
corporation under the laws of the State of New York, having its principal
corporate trust office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
Trustee (herein called the "Trustee"), supplementing the Indenture, dated
November 1, 1996, between The Montana Power Company, a corporation organized
under the laws of the State of Montana ("MPC"), and the Trustee (the
"Indenture").
RECITALS
WHEREAS, MPC has entered into an Agreement and Plan of Merger among
MPC, Touch America Holdings, Inc. (a Delaware corporation and a wholly-owned
subsidiary of MPC), and MPC LLC (a wholly-owned subsidiary of Touch America
Holdings, Inc.), dated as of February 20, 2001, pursuant to which MPC has merged
with and into MPC LLC; and
WHEREAS, MPC LLC has duly authorized the execution and delivery of
this First Supplemental Indenture pursuant to Section 1201(a) of the Indenture,
to evidence the succession of MPC LLC to MPC, and the assumption by MPC LLC of
the covenants of MPC contained in the Indenture and the Securities issued
thereunder; and
WHEREAS, MPC LLC has requested the Trustee join with it in the
execution of this First Supplemental Indenture;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, as follows:
ARTICLE ONE
Covenants and Agreements of MPC LLC.
Section 101. MPC LLC hereby expressly assumes the due and punctual
payment of the principal of and premium, if any, and interest, if any, on all
Outstanding Securities issued under the Indenture and the performance of every
covenant of the Indenture on the part of MPC to be performed or observed.
ARTICLE TWO
Section 201. Miscellaneous Provisions.
Section 1. The terms defined in the Indenture shall, for all
purposes of this First Supplemental Indenture, have the meaning specified in the
Indenture.
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 Indenture set forth and upon the following
terms and conditions:
The Trustees shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this First Supplemental Indenture
or for or in respect of the recitals contained herein, all of which recitals are
made by MPC LLC solely. In general, each and every term and condition contained
in this First Supplemental Indenture shall apply to and form part of the
Indenture with the same force and effect as if the same were 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 First Supplemental Indenture.
Section 3. Whenever in this First Supplemental Indenture any of the
parties hereto is named or referred to, this shall, subject to the provisions of
the Indenture, be deemed to include the successors and assigns of such
respective parties, and all the covenants and agreements in this First
Supplemental Indenture contained by or on behalf of MPC LLC, or by or on behalf
of the Trustee 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 First 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 Securities Outstanding under the Indenture, as amended and supplemented,
any right, remedy or claim under or by reason of this First Supplemental
Indenture or any covenant, condition, stipulation, promise or agreement hereof,
and all the covenants, conditions, stipulations, promises and agreements in this
First Supplemental Indenture contained by or on behalf of respective parties
shall be for the sole and exclusive benefit of the parties hereto, and of the
Holders of the Securities now or to be Outstanding under the Indenture.
Section 5. This First Supplemental Indenture may be executed in
several counterparts, each of which shall be deemed to be an original and all of
which shall constitute but one and the same instrument.
2
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective seals to be hereunto affixed attested,
all as of the day and year first above written.
[Seal] THE MONTANA POWER, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Chief Financial
Officer and Treasurer
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: V.P., General Counsel & Secretary
[Seal] THE BANK OF NEW YORK, Trustee
By:
--------------------------------
Name:
Title:
ATTEST:
---------------------------------
Name:
Title:
STATE OF MONTANA )
) ss.:
COUNTY OF SILVER BOW )
On the 13th day of February,2002, before me personally came Xxxxxxx
X. Xxxxxxxx, to me know, who, being by me duly sworn, did depose and say that
she/he is Vice President, Chief Financial Officer and Treasurer of The Montana
Power, L.L.C., the limited liability company described in and which executed the
foregoing instrument; that she/he knows the seal of said company; that the seal
affixed to said instrument is such corporate seal; that it as so affixed by
authority of the Board of Directors of said company, and that she/he signed
her/his name thereto by like authority.
/s/ Xxx X. Xxxxxx
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Notary Public
[Notarial Seal]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective seals to be hereunto affixed attested,
all as of the day and year first above written.
[Seal] THE MONTANA POWER, L.L.C.
By:
--------------------------------
Name:
Title:
ATTEST:
---------------------------------
Name:
Title:
[Seal] THE BANK OF NEW YORK, Trustee
By:/s/ XxxxXxxx X. Xxxxxxx
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Name: XxxxXxxx X. Xxxxxxx
Title: Vice President
ATTEST:
/s/ Xxxxxxx Pitfik
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Name: Xxxxxxx Pitfik
Title: Assistant Treasurer
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 13th day of February, 2002, before me, Xxxxxxx X. Xxxxxxx, a
Notary Public in and for the State of New York, personally came and appeared
XxxxXxxx X. Xxxxxxx, to me known and known to me to be a/the Vice President of
THE BANK OF NEW YORK, the corporation that executed the within instrument, and
acknowledged to me that such corporation executed the same, and, being by me
duly sworn, did depose and say that she/he resides at 00 XxXxxxx Xxxxxx, Xxxxxx
Xxxxxx, Xxx Xxxx 00000; that she/he is a/the Vice President of THE BANK OF NEW
YORK, the corporation described in and which executed the within and above
instrument; that she/he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that she/he signed
her/his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Commission Expires May 16, 2002
