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 1st 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.


 


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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


 


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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)


 


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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:


 


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  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.


 


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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


 


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(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


 


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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


 


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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”).


 


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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.


 


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(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.


 


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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.


 


	
   

  	
  NORTHWESTERN CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Brian B. Bird

  	
   

  
	
   

  	
  Name: Brian B. Bird

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
  /s/ Paul J. Evans

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Lori-Anne Rosenberg

  	
   

  
	
   

  	
  Name: Lori-Anne Rosenberg

  
	
   

  	
  Title: Asst. Vice President

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
						



 


70





















 




	
  STATE OF NEW YORK

  	
  )

  
	
   

  	
  )  ss.:

  
	
  COUNTY OF NEW YORK

  	
  )

  






 


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.


 


	
   

  	
  /s/ Keith M. Wixson

  
	
   

  	
  Notary Public

  
	
   

  	
  [STAMP]

  KEITH M. WIXSON

  NOTARY PUBLIC, State of New York

  No. 01WI5081858

  Qualified in New York County

  Commission Expires July 14, 2007

  



 


71





















 




	
  STATE OF NEW YORK

  	
  )

  
	
   

  	
  )    ss.:

  
	
  COUNTY OF NEW YORK

  	
  )

  






 


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.


 


	
   

  	
  /s/ Keith M. Wixson

  
	
   

  	
  Notary Public

  
	
   

  	
  [STAMP]

  KEITH M. WIXSON

  NOTARY PUBLIC, State of New York

  No. 01WI5081858

  Qualified in New York County

  Commission Expires July 14, 2007

  



 


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.


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


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.


 


77





















 


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.


 


	
   

  	
   

  
	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


2





















 


Exhibit
D


 


[Form
of Securities of Series No. 2]


 


3