EXHIBIT 4(b)(9)
---------------
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of November 1, 1998
(this "First Supplemental Indenture"), between NorthWestern
Corporation, a Delaware corporation (the "Company"), and The Chase
Manhattan Bank, as trustee (the "Trustee"), under the Indenture dated
as of November 1, 1998 between the Company and the Trustee (the
"Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of the Company's senior
debt securities to be issued from time to time in one or more series
as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and
delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its
securities to be known as its 6.95% Senior Debentures due 2028 in the
aggregate principal amount of $105,000,000 (the "Senior Debentures"),
the form and substance of such Senior Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the
Indenture and this First Supplemental Indenture; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this First Supplemental Indenture and all requirements
necessary to make this First Supplemental Indenture a valid instrument
in accordance with its terms and to make the Senior Debentures, when
executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company have been performed, and
the execution and delivery of this First Supplemental Indenture has
been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and
acceptance of the Senior Debentures by the Holders thereof, and for
the purpose of setting forth, as provided in the Indenture, the form
and substance of the Senior Debentures and the terms, provisions and
conditions thereof, the Company covenants and agrees with the Trustee
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation; and
(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Business Day" means any calendar day that is not a
Saturday, Sunday or legal holiday in New York, New York and on which
commercial banks are open for business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term ("Remaining Life") of the
Senior Debentures to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity
to the remaining term of such Senior Debentures.
"Comparable Treasury Price" means (i) the average of five
Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest Reference Treasury Dealer Quotations,
or (ii) if the Independent Investment Banker obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such
quotations.
"Independent Investment Banker" means Xxxxxx Xxxxxxx & Co.
Incorporated or, if such firm is unwilling or unable to select the
Comparable Treasury Issue, an independent investment banking
institution of national standing appointed by the Trustee.
"Maturity Date" means the date on which the Senior
Debentures mature and on which the principal shall be due and payable
together with all accrued and unpaid interest thereon.
"Reference Treasury Dealer" means (i) Xxxxxx Xxxxxxx & Co.
Incorporated, CIBC Xxxxxxxxxxx Corp. and their respective successors,
provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer and (ii) any other Primary Treasury Dealer
selected by the Independent Investment Banker after consultation with
the Company.
2
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Independent Investment Banker, of the
bid and asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in writing
to the Independent Investment Banker at 5:00 p.m., New York City time,
on the third Business Day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date,
(i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Board of Governors of the
Federal Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Remaining Life, yields for the
two published maturities most closely corresponding to the Comparable
Treasury Issue shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight line
basis, rounding to the nearest month) or (ii) if such release (or any
successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum
equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date. The
Treasury Rate shall be calculated on the third Business Day preceding
the redemption date.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE SENIOR DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated
the "6.95% Senior Debentures due 2028", limited in aggregate principal
amount to $105,000,000, which amount shall be as set forth in any
written Company Order for the authentication and delivery of Senior
Debentures pursuant to Section 303 of the Indenture.
SECTION 2.2. Stated Maturity.
The Stated Maturity of the Senior Debentures will be
November 15, 2028.
SECTION 2.3. Form and Payment.
(a) The Senior Debentures shall initially be issued as
Registered Securities in global form in the aggregate
principal amount of $105,000,000 (a "Global Debenture"), to
3
be registered in the name of The Depository Trust Company,
New York, New York, or its nominee (the "Depository"), and
delivered by the Trustee to the Depository or a custodian
appointed by the Depository for crediting to the accounts of
its participants pursuant to the instructions of the
Company. Payments on the Senior Debentures issued as a
Global Debenture will be made to the Depository.
(b) A Global Debenture may be transferred, in whole but not in
part, only by the Depository to a nominee of the Depository,
by a nominee of the Depository to another nominee of the
Depository, or by the Depository or such nominee to a
successor Depository selected or approved by the Company or
to a nominee of such successor Depository.
(c) If at any time the Depository notifies the Company that it
is unwilling or unable to continue as Depository or if at
any time the Depository for such series shall no longer be
registered or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depository for such series is
not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such
condition, as the case may be, the Company will execute,
and, subject to Article Two of the Indenture, the Trustee
will authenticate and deliver, certificated Senior
Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture
in exchange for such Global Debenture. In addition, the
Company may at any time determine that the Senior Debentures
shall no longer be represented by a Global Debenture. In
such event the Company will execute, and, subject to a
certificate evidencing such determination by the Company,
the Trustee will authenticate and deliver certificated
Senior Debentures in definitive registered form without
coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such certificated
Senior Debentures in definitive registered form without
coupons, in authorized denominations, the Global Debenture
shall be canceled by the Trustee. Such Senior Debentures in
definitive registered form issued in exchange for the Global
Debenture shall be registered in such names and in such
authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall
deliver such Senior Debentures to the Depository for
delivery to the Persons in whose names such Senior
Debentures are so registered.
4
(d) If, pursuant to the provisions of Section 2.3(c), the Senior
Debentures are issued in certificated form, principal of and
premium, if any, and interest on the Senior Debentures
issued in certificated form will be payable, the transfer of
such Senior Debentures will be registrable and such Senior
Debentures will be exchangeable for Senior Debentures
bearing identical terms and provisions at the office or
agency of the Trustee; provided, however, that payment of
interest may be made at the option of the Company by check
mailed to the Holder at such address as shall appear in the
Security Register.
SECTION 2.4. Interest.
(a) Each Senior Debenture will bear interest at the rate of
6.95% per annum (the "Coupon Rate") from its original date
of issuance or from the most recent Interest Payment Date
(as defined below) to which interest has been paid or duly
provided for until the principal thereof becomes due and
payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at
the Coupon Rate, compounded semi-annually, payable (subject
to the provisions of Article Four) semi-annually in arrears
on May 15 and November 15 of each year (each, an "Interest
Payment Date"), commencing on May 15, 1999, to the Person in
whose name such Senior Debenture or any Predecessor Security
is registered, at the close of business on the Regular
Record Date for such interest installment, which shall be
the close of business on the April 30 or October 31 next
preceding that Interest Payment Date; provided, however,
that interest payable at Maturity shall be paid to the
Person to whom principal is paid. Any interest on any
Senior Debenture which is payable but is not punctually paid
or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder,
and such defaulted interest and interest on such defaulted
interest (to the extent lawful) at the Coupon Rate may be
paid by the Company, at its election, (i) to the Persons in
whose names the Senior Debentures (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date to be fixed by the Company
for such payment, notice of which shall be not more than 15
days and not less than 10 days prior to the date of the
proposed payment, or (ii) in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Senior Debentures may be listed, and
upon such notice as may be required by such exchange, all as
more fully provided in Section 307 of the Indenture.
5
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day
months. Except as provided in the following sentence, the
amount of interest payable for any period shorter than a
full semi-annual period for which interest in computed will
be computed on the basis of the actual number of days
elapsed in such a 30-day month. In the event that any date
on which interest is payable on the Senior Debentures is not
a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in
respect of any such delay).
ARTICLE III
REDEMPTION OF THE SENIOR DEBENTURES; DEFEASANCE
SECTION 3.1. Optional Redemption by Company.
(a) Subject to the provisions of Article Eleven of the
Indenture, the Company shall have the right to redeem the
Senior Debentures, in whole at any time or in part from time
to time, at a redemption price equal to the greater of (i)
100% of their principal amount to be redeemed and (ii) the
sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the
date of redemption on a semi-annual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury
Rate plus 20 basis points, plus, in either case, any accrued
and unpaid interest thereon to the date of such redemption
(the "Optional Redemption Price"). The applicable provisions
of Article Eleven of the Indenture shall govern all matters
relating to the redemption and payment of the Senior
Debentures.
SECTION 3.2. No Sinking Fund.
The Senior Debentures are not entitled to the benefit of any
sinking fund.
SECTION 3.3. Defeasance.
The provisions of Article Fourteen of the Indenture shall be
applicable to the Senior Debentures.
ARTICLE IV
EVENTS OF DEFAULT
SECTION 4.1. Additional Events of Default.
In addition to the Events of Default set forth in Section
5.01 of the Indenture, it shall be an Event of Default with respect to
the Senior Debentures if any one or more of the following events shall
6
occur and be continuing (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body):
(a) with respect to any one or more issues of indebtedness of
the Company having an outstanding principal amount of
$5,000,000 or more in the aggregate, (i) an event of default
occurs that results in the acceleration of such indebtedness
unless, within 30 days of such acceleration, (A) such
indebtedness is discharged in full or (B) such acceleration
is rescinded or annulled or (ii) the Company fails to make
payment of any such indebtedness at final maturity (subject
to any applicable grace periods); or
(b) one or more final judgments or orders for the payment of
money in excess of $5,000,000 in the aggregate is rendered
against the Company and remains unpaid and unstayed for a
period of 60 or more consecutive days.
ARTICLE V
FORM OF DEBENTURE
SECTION 5.1. Form of Debenture.
The Senior Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the
following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE SENIOR DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT:
This Senior Debenture is a global Security within the
meaning of the Indenture hereinafter referred to and is registered in
the name of a Depository or a nominee of a Depository. This Senior
Debenture is exchangeable for Senior Debentures registered in the name
of a person other than the Depository or its nominee only in the
limited circumstances described in the Indenture, and no transfer of
this Senior Debenture (other than a transfer of this Senior Debenture
as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository) may be registered except in limited circumstances.
Unless this Senior Debenture is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx) to the issuer or its agent for registration of
transfer, exchange or payment, and any Senior Debenture issued is
registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
7
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.]
No._______________
$_________________
CUSIP No. 000000XX0
6.95% SENIOR DEBENTURE
DUE 2028
NorthWestern Corporation, a Delaware corporation (the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to _________________, or registered assigns, the
principal sum of _______ Dollars on November 15, 2028_______________,
and to pay interest on said principal sum from November 12, 1998, or
from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
provided for, semi-annually on May 15 and November 15 of each year
commencing May 15, 1999, at the rate of 6.95% per annum until the
principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per annum
compounded semi-annually. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest
is payable on this Senior Debenture is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), in each case with the
same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid
to the person in whose name this Senior Debenture (or one or more
Predecessor Securities, as defined in said Indenture) is registered at
the close of business on the Regular Record Date for such interest
installment, which shall be the close of business on April 30 or
October 31 next preceding such Interest Payment Date. Any such
interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such
Regular Record Date and may be paid to the Person in whose name this
Senior Debenture (or one or more Predecessor Securities) is registered
at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof
shall be given to the registered Holders of this series of Securities
not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this series of
Securities may be listed, and upon such notice as may be required by
8
such exchange, all as more fully provided in the Indenture. The
principal of (and premium, if any) and the interest on this Senior
Debenture shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed
to the registered Holder at such address as shall appear in the
Security Register.
Unless the Certificate of Authentication hereon has been
executed by the Trustee referred to on the reverse side hereof, this
Senior Debenture shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose. The provisions
of this Senior Debenture are continued on the reverse side hereof and
such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument
to be executed.
Dated:_______________
NORTHWESTERN CORPORATION
By: ___________________________________
Attest:
By: ______________________
Secretary
9
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank
as Trustee
By: _____________________________
Authorized Officer
By: _____________________________
Authorized Signatory
10
(FORM OF REVERSE OF DEBENTURE)
This Senior Debenture is one of a duly authorized series of
Securities of the Company (herein sometimes referred to as the "Senior
Debentures"), all issued under and pursuant to an Indenture dated as
of November 1, 1998, duly executed and delivered between the Company
and The Chase Manhattan Bank, as Trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of November
1, 1998, between the Company and the Trustee (such Indenture, as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Senior
Debentures. By the terms of the Indenture, the Securities are
issuable in series that may vary as to amount, date of maturity, rate
of interest and in other respects as provided in the Indenture. This
series of Securities is limited in aggregate principal amount as
specified in said First Supplemental Indenture.
The Company shall have the right to redeem this Senior
Debenture at the option of the Company, in whole at any time or in
part from time to time (an "Optional Redemption"), at a redemption
price equal to the greater of (i) 100% of the principal amount and
(ii) the sum of the present values of the remaining scheduled payments
of principal and interest hereon discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate (as defined in the Indenture) plus
20 basis points, plus, in either case, any accrued but unpaid interest
hereon to the date of such redemption (the "Optional Redemption
Price"). Any redemption pursuant to this paragraph will be made upon
not less than 30 nor more than 60 days' notice, at the Optional
Redemption Price. If the Senior Debentures are only partially
redeemed by the Company pursuant to an Optional Redemption, the
particular Senior Debentures to be redeemed will be selected by such
method as the Trustee shall deem fair and appropriate.
In the event of redemption of this Senior Debenture in part
only, a new Senior Debenture or Senior Debentures for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the
Senior Debentures may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to
the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Senior Debentures
affected at the time Outstanding, as defined in the Indenture, to
execute supplemental indentures for the purpose of adding any
11
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Senior
Debentures; provided, however, that no such supplemental indenture
shall (i) change the Stated Maturity of the principal of, or any
installment of interest on, any Senior Debentures, or reduce the
principal amount thereof, or reduce the rate of payment of interest
thereon, or reduce any premium payable upon the redemption thereof,
without the consent of the Holder of each Senior Debenture, or (ii)
reduce the aforesaid percentage in principal amount of Senior
Debentures, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each
Senior Debenture then outstanding. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal
amount of the Senior Debentures at the time outstanding affected
thereby, on behalf of all of the Holders of the Senior Debentures, to
waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture
with respect to the Senior Debentures, and its consequences, except a
default in the payment of the principal of or premium, if any, or
interest on any of the Senior Debentures or in respect of a covenant
or provision that cannot be modified or amended without the consent of
the Holders of each Senior Debenture then outstanding. Any such
consent or waiver by the registered Holder of this Senior Debenture
(unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of
this Senior Debenture and of any Senior Debenture issued in exchange
herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Senior Debenture.
No reference herein to the Indenture and no provision of
this Senior Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay
the principal of and premium, if any, and interest on this Senior
Debenture at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Senior Debenture is transferable
by the registered Holder hereof on the Security Register of the
Company, upon surrender of this Senior Debenture for registration of
transfer at the office or agency of the Company in the City and State
of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Senior Debentures
of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
12
Prior to due presentment for registration of transfer of
this Senior Debenture, the Company, the Trustee, any paying agent and
any Security Registrar may deem and treat the registered holder hereof
as the absolute owner hereof (whether or not this Senior Debenture
shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for
the purpose of receiving payment of or on account of the principal
hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Senior Debenture, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of
the Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of any
predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
The Senior Debentures are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations herein and therein set forth, Senior Debentures so issued
are exchangeable for a like aggregate principal amount of Senior
Debentures of a different authorized denomination, as requested by the
Holder surrendering the same.
All terms used in this Senior Debenture that are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
ARTICLE VI
ORIGINAL ISSUE OF SENIOR DEBENTURES
SECTION 6.1. Original Issue of Senior Debentures.
Senior Debentures in the aggregate principal amount of
$105,000,000 may, upon execution of this First Supplemental Indenture,
be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
deliver said Senior Debentures to or upon receipt of a Company Order,
without any further action by the Company.
13
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
SECTION 7.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this First Supplemental Indenture.
SECTION 7.3. Governing Law.
This First Supplemental Indenture and each Senior Debenture
shall be deemed to be a contract made under the internal laws of the
State of New York, and for all purposes shall be construed in
accordance with the laws of said State.
SECTION 7.4. Separability.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Senior Debentures 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 First Supplemental Indenture or of the Senior
Debentures, but this First Supplemental Indenture and the Senior
Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 7.5. Counterparts.
This First Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
14
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, on the date or
dates indicated in the acknowledgments and as of the day and year
first above written.
NORTHWESTERN CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Vice President Finance and
Chief Financial Officer
Attest:
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx
Corporate Secretary
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
Attest:
____________________________
Assistant Secretary
15
STATE OF SOUTH DAKOTA )
) SS
COUNTY OF MINNEHAHA )
On the day of November __, 1998, before me personally Xxxxxx
X. Xxxxxx came to be known, who, being by me duly sworn, did depose
and say that he is the Vice President Finance and Chief Financial
Officer of NorthWestern Corporation, one of the corporations described
in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said
instrument is such corporation seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my seal of office this ____ day of November, 1998.
___________________________________
(Notarial Seal)
NOTARY PUBLIC, MINNEHAHA COUNTY, S.D.
My Commission Expires _____________
STATE OF NEW YORK )
) SS
COUNTY OF KINGS )
On the day of November __, 1998, before me personally
_______________ came to be known, who, being by me duly sworn, did
depose and say that he is the _____________ of The Chase Manhattan
Bank, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such
corporation seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by
like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my seal of office this ____ day of November, 1998.
____________________________
(Notarial Seal) NOTARY PUBLIC
COMMISSION EXPIRES
16
