Exhibit 4(f)
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NORTHWESTERN ENERGY, L.L.C.
AND
NORTHWESTERN CORPORATION
TO
THE BANK OF NEW YORK
Trustee
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SECOND SUPPLEMENTAL INDENTURE
(For Unsecured Subordinated Debt Securities
relating to Trust Securities)
Dated as of August 13, 2002
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SECOND SUPPLEMENTAL INDENTURE, dated as of August 13, 2002 (this
"Second Supplemental Indenture"), among NORTHWESTERN ENERGY, L.L.C., a limited
liability company duly organized and existing under the laws of the State of
Montana, formerly known as The Montana Power, L.L.C. and successor by merger to
The Montana Power Company (the "Company"), having its principal office at 00
Xxxx Xxxxxxxx, Xxxxx, Xxxxxxx 00000, NORTHWESTERN CORPORATION, a corporation
duly organized and existing under the laws of the State of Delaware, having its
principal office at 000 X. Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
("NOR"), 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 (the "Trustee"), supplementing the Indenture, dated as of
November 1996, between The Montana Power Company, predecessor to the Company,
and the Trustee, as amended by the First Supplemental Indenture, dated as of
February 13, 2002, between the Company (formerly known as The Montana Power,
L.L.C.) and the Trustee (as supplemented, the "Indenture").
RECITALS
WHEREAS, pursuant to a Unit Purchase Agreement, dated as of
September 29, 2000, by and between NOR, Touch America Holdings, Inc. and The
Montana Power Company, on February 15, 2002, NOR acquired all the outstanding
membership interests in the Company and the Company became a direct wholly-owned
subsidiary of NOR; and
WHEREAS, as of the date hereof, $67,010,325 aggregate principal
amount of the Company's 8.45% Junior Subordinated Debentures due December 31,
2036 are the only Securities Outstanding under the Indenture (the "QUIPS
Debentures");
WHEREAS, NOR now desires to enter into this Second Supplemental
Indenture to fully and unconditionally assume, on a joint and several basis with
the Company, the Company's obligations with respect to the Outstanding QUIPS
Debentures and the performance of every covenant, obligation and agreement of
the Company under the Indenture applicable to the Outstanding QUIPS Debentures
to be performed or observed as though each such covenant, obligation and
agreement were applicable directly to NOR (substituting NOR for the Company for
purposes of the Indenture), which assumption shall be subject to all of the
terms and conditions related to the QUIPS Debentures contained herein, in the
Indenture and in the QUIPS Debentures, including, without limitation, the
subordination of the obligations so assumed to all Senior Indebtedness of NOR
(substituting NOR for the Company for purposes of the definition of Senior
Indebtedness) to the same extent as such QUIPS Debentures are subordinated to
all Senior Indebtedness of the Company, and which assumption shall remain in
effect only for so long as any of the QUIPS Debentures, which are outstanding on
the date hereof, shall remain Outstanding; and
WHEREAS, Section 1201(b) of the Indenture permits the parties
thereto to enter into a supplemental indenture without the consent of Holders to
add provisions to the Indenture 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; and
WHEREAS, the assumption by NOR of the obligations of the Company
with respect to the QUIPS Debentures under the Indenture will benefit the
Holders of the Outstanding QUIPS Debentures; and
WHEREAS, the Company and NOR have duly authorized the execution
and delivery of this Second Supplemental Indenture pursuant to Section 1201(b)
of the Indenture; and
WHEREAS, the Company and NOR have requested the Trustee join with
them in the execution of this Second Supplemental Indenture.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE ONE
Additional Obligor.
Section 101. As of the date hereof, NOR fully and unconditionally
assumes, on a joint and several basis with the Company, the due and punctual
payment of the principal of and premium, if any, and interest, if any, on all
Outstanding QUIPS Debentures and the performance of every covenant, obligation
and agreement of the Company under the Indenture applicable to the Outstanding
QUIPS Debentures to be performed or observed as though each such covenant,
obligation and agreement were applicable directly to NOR (substituting NOR for
the Company for purposes of the Indenture), which assumption shall be subject to
all of the terms and conditions related to the QUIPS Debentures contained
herein, in the Indenture and in the QUIPS Debentures, including, without
limitation, the subordination of such obligations to all Senior Indebtedness of
NOR (substituting NOR for the Company for purposes of the definition of Senior
Indebtedness) to the same extent as such QUIPS Debentures are subordinated to
all Senior Indebtedness of the Company. The assumption contained in this Second
Supplemental Indenture shall remain in effect only for so long as any of the
QUIPS Debentures, which are Outstanding on the date hereof, shall remain
Outstanding. Notwithstanding the assumption contained in this Second
Supplemental Indenture, the obligations of the Company to duly and punctually
pay the principal of and premium, if any, and interest, if any, on the
Outstanding QUIPS Debentures and to perform its covenants, obligations and
agreements on the part of the Company under the Indenture shall remain in full
force and effect, without diminution or derogation in any respect whatsoever.
ARTICLE TWO
Rights of Parties Not Prejudiced.
Section 201. Notwithstanding the foregoing, the assumption
contained in this Second Supplemental Indenture shall be without prejudice to
any rights of each of the Company and NOR under the QUIPs Debentures, the
Indenture and this Second Supplemental Indenture, including, without limitation,
the right of each of the Company and NOR to consolidate with or
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merge into any other corporation, or convey or otherwise transfer, or lease, its
properties and assets substantially as an entirety to any Person, and to be
relieved from its obligations under the QUIPS Debenture, the Indenture and
hereunder, as provided in Article Eleven of the Indenture. For the avoidance of
doubt, the Company may consolidate with or merge into NOR or convey or otherwise
transfer, or lease, its properties and assets substantially as an entirety to
NOR, and be relieved of its obligations under the QUIPS Debentures, the
Indenture and hereunder as provided in Article Eleven of the Indenture
notwithstanding the fact that NOR has assumed the Company's obligations under
the QUIPS Debentures and the Indenture pursuant to this Second Supplemental
Indenture, and such assumption hereunder is expressly subject to such right.
ARTICLE THREE
Miscellaneous Provisions.
Section 301. The terms defined in the Indenture shall, for all
purposes of this Second Supplemental Indenture, have the meaning specified in
the Indenture.
Section 302. The Trustee hereby accepts the trusts herein
declared, provided, created or supplemented and agrees to perform the same upon
the terms and conditions herein and in the Indenture set forth; provided,
however, that the Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Second Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Company and NOR.
Section 303. Each and every term and condition contained in this
Second 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 Second Supplemental Indenture and each
and every term and condition contained in Article Nine of the Indenture shall
apply to and form part of this Second Supplemental Indenture with the same force
and effect as if the same were set forth in full herein.
Section 304. Whenever in this Second 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 Second
Supplemental Indenture contained by or on behalf of the Company, NOR or 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 305. Nothing in this 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 QUIPS Debentures Outstanding under the Indenture, as amended and
supplemented, any right, remedy or claim under or by reason of this Second
Supplemental Indenture or any covenant, condition, stipulation, promise or
agreement hereof, and all the covenants, conditions, stipulations, promises and
agreements in this Second Supplemental Indenture contained by or on behalf of
respective parties shall be for the
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sole and exclusive benefit of the parties hereto, and of the Holders of the
QUIPS Debentures Outstanding under the Indenture.
Section 306. This Second 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.
Section 307. Except as set forth in this Second Supplemental
Indenture, all of the provisions of the Indenture remain in full force and
effect, unamended.
Section 308. This Second Supplemental Indenture shall be governed
by and construed in accordance with the laws of the State of New York, except to
the extent that the law of any other jurisdiction shall be mandatorily
applicable.
Section 309. In case any one or more of the provisions contained
in this Second Supplemental Indenture shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture, but this Second Supplemental Indenture shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental 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] NORTHWESTERN ENERGY, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
ATTEST:
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Secretary
[Seal] NORTHWESTERN CORPORATION
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Vice President and Chief Financial Officer
ATTEST:
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Vice President - Legal Administration
and Corporate Secretary
[Seal] THE BANK OF NEW YORK, its Trustee
By: /s/ XxxxXxxx X. Xxxxxxx
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XxxxXxxx X. Xxxxxxx
Vice President
ATTEST:
/s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Treasurer
STATE OF SOUTH DAKOTA )
) ss.:
COUNTY OF MINNEHHA )
On the 9th day of August, 2002, before me personally came Xxxxxxx
X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say that
she/he is President and Chief Executive Officer of NorthWestern Energy, L.L.C.,
the limited liability company described in and which executed the foregoing
instrument; and that she/he signed her/his name thereto.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 9th day of August, 2002.
[SEAL] /s/ Xxxxx X. Xxxxx
---------------------------
Xxxxx X. Xxxxx
My Commision Expires: 7-12-2005
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STATE OF SOUTH DAKOTA )
) ss.:
COUNTY OF MINNEHHA )
On the 9th day of August, 2002, before me personally came Xxxx X.
Xxxx, to me known, who, being by me duly sworn, did depose and say that she/he
is Vice President and Chief Financial Officer of NorthWestern Corporation, one
of the corporations described in and which executed the foregoing 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 set my hand and affixed my
seal of office this 9th day of August, 2002.
[SEAL] /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
My Commision Expires: 7-12-2005
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 13 day of August, 2002, before me personally came XxxxXxxx
X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that
she is a Vice President of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument; that she 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 signed her name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 13 day of August, 2002.
/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 18, 2006
