0000073088false00000730882023-06-292023-06-29
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 29, 2023
NorthWestern Corporation
(Exact name of registrant as specified in its charter)
| | | | | | | | | | | | | | |
| Delaware | 1-10499 | 46-0172280 |
(State or other jurisdiction of
incorporation or organization) | (Commission File Number) | (I.R.S. Employer Identification No.) |
| 3010 W. 69th Street | Sioux Falls | South Dakota | | 57108 |
| (Address of principal executive offices) | | (Zip Code) |
Registrant’s telephone number, including area code: 605-978-2900
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| | | | | | | | |
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
| Common stock | NWE | Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging Growth Company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
☐
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
On June 29, 2023, the City of Forsyth, Rosebud County, Montana, (the "City") issued $144,660,000 principal amount of its Pollution Control Revenue Refunding Bonds (NorthWestern Corporation Colstrip Project) Series 2023 (the "Bonds") on behalf of NorthWestern Corporation, d/b/a NorthWestern Energy (Nasdaq: NWE) (the "Company"). The proceeds of the Bonds were loaned to the Company by the City (as discussed below) and have been used to provide for the payment of the City's $144,660,000 Pollution Control Revenue Refunding Bonds (NorthWestern Corporation Colstrip Project) Series 2016 (the "Prior Bonds") issued by the City on behalf of the Company. The Bonds were issued under an Indenture of Trust, dated as of June 1, 2023 (the "Indenture"), between the City and U.S. Bank Trust Company, National Association, as trustee (the "Trustee").
The City has loaned the proceeds of the Bonds to the Company pursuant to a Loan Agreement dated as of June 1, 2023 (the "Loan Agreement") between the Company and the City. Pursuant to the Loan Agreement, the Company is obligated to make payments in such amounts and at such times as will be sufficient to pay, when due, the principal and interest on the Bonds. In order to provide security for the payment of the Company's obligation to repay the loan made to it by the City under the Loan Agreement, the Company, pursuant to a Bond Delivery Agreement, dated as of June 1, 2023 (the "Bond Delivery Agreement"), between the Company and the Trustee, issued and delivered to the Trustee $144,660,000 of its first mortgage bonds (the "2023 First Mortgage Bonds") pursuant to the Mortgage and Deed of Trust, dated as of October 1, 1945, from the Company to The Bank of New York Mellon and Mary Miselis, as trustees (collectively, the "Mortgage Trustee"), as previously supplemented and amended and as supplemented by a Forty-fourth Supplemental Indenture, dated as of June 1. 2023 (collectively, the "Mortgage"). As holder of the 2023 First Mortgage Bonds, the Trustee has, ratably with the holders of all other first mortgage bonds issued and outstanding under the Mortgage, a lien on certain properties of the Company. The Forty-fourth Supplemental Indenture provides that no payments under the 2023 First Mortgage Bonds will be due so long as the Company is making its payments under the Loan Agreement.
The Bonds bear interest at a rate of 3.875%, beginning on their date of issue through maturity on July 1, 2028.
The Bonds are subject to special mandatory redemption upon a determination that the interest on the Bonds would be included in the holders' gross income for federal income tax purposes. Any such special mandatory redemption also would be at a redemption price of 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the redemption date.
The Indenture, the Loan Agreement, the Bond Delivery Agreement and the Forty-Fourth Supplemental Indenture are filed with this report as Exhibits 4.1, 4.2, 4.3, and 4.4.
Item 9.01 Financial Statements and Exhibits.
| | | | | |
| EXHIBIT NO. | DESCRIPTION OF DOCUMENT |
| Indenture of Trust, dated as of June 1, 2023, by and between the City of Forsyth, Rosebud County, Montana, and U.S. Bank Trust Company, National Association, as trustee |
| Loan Agreement, dated as of June 1, 2023, by and between the City of Forsyth, Rosebud County, Montana, and NorthWestern Corporation |
| Bond Delivery Agreement, dated as of June 1, 2023, between NorthWestern Corporation and U.S. Bank Trust Company, National Association, as trustee |
| Forty-fourth Supplemental Indenture, dated as of June 1, 2023, between NorthWestern Corporation and the Mortgage Trustee |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
| * Filed herewith | |
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| | | | | | | | | | | |
| | NorthWestern Corporation | |
| | | |
| By: | /s/ Timothy P. Olson | |
| | Timothy P. Olson | |
| | Corporate Secretary | |
Date: July 6, 2023
Indenture of Trust
between
City of Forsyth, Rosebud County, Montana
and
U.S. Bank Trust Company, National Association,
as Trustee
___________________________
Dated as of June 1, 2023
___________________________
Authorizing
$144,660,000
Pollution Control Revenue Refunding Bonds
(NorthWestern Corporation Colstrip Project)
Series 2023
Table of Contents1
Section Heading Page
| | | | | | | | |
| Parties | |
| Recitals | |
| Grant Clause | |
Article I Definitions | |
| Section 1.01. Definitions | |
Article II The Bonds | |
| Section 2.01. Authority for and Issuance of Bonds | |
| Section 2.02. Execution of Bonds | |
| Section 2.03. Authentication of Bonds | |
| Section 2.04. Bonds Not General Obligations | |
| Section 2.05. Prerequisites to Authentication of Bonds | |
| Section 2.06. Lost or Destroyed Bonds or Bonds Canceled in Error | |
| Section 2.07. Registration, Registration of Transfer, and Exchange of Bonds | |
| Section 2.08. Other Obligations | |
| Section 2.09. Cancellation of Bonds | |
| Section 2.10. Payment of Principal and Interest | |
| Section 2.11. Book-Entry System | |
Article III Redemption | |
| Section 3.01. Redemption Provisions | |
| Section 3.02. Selection of Bonds to Be Redeemed; Purchase in Lieu of Redemption | |
| Section 3.03. Procedure for Redemption | |
| Section 3.04. No Partial Redemption after Default | |
Article IV Disposition of Bond Proceeds; the Bond Fund | |
| Section 4.01. Disposition of Bond Proceeds; Creation of Bond Fund | |
| Section 4.02. Liens | |
| Section 4.03. Deposits into Bond Fund | |
| Section 4.04. Use of Moneys in Bond Fund | |
| Section 4.05. Custody of Bond Fund; Withdrawal of Moneys | |
| Section 4.06. Bonds Not Presented for Payment | |
| | |
| | |
This table of contents is not a part of the Indenture, and is for convenience only. The captions herein are of no legal effect and do not vary the meaning or legal effect of any part of the Indenture.
| | | | | | | | |
| Section 4.07. Moneys Held in Trust | |
| Section 4.08. Payment to the Company | |
Article V Investments | |
| Section 5.01. Investments | |
Article VI General Covenants and the First Mortgage Bonds | |
| Section 6.01. Not General Obligations | |
| Section 6.02. Performance of Covenants of the Issuer; Representations | |
| Section 6.03. Maintenance of Corporate Existence; Compliance with Laws | |
| Section 6.04. Enforcement of Obligations of the Company; Amendments | |
| Section 6.05. Further Instruments | |
| Section 6.06. No Disposition of Trust Estate | |
| Section 6.07. Access to Books | |
| Section 6.08. Arbitrage and Tax Exemption Certifications and Covenants | |
| Section 6.09. Notices of Trustee | |
| Section 6.10. Financing Statements | |
| Section 6.11. No Transfer of First Mortgage Bonds | |
Article VII Defeasance | |
| Section 7.01. Defeasance | |
Article VIII Default and Remedies | |
| Section 8.01. Events of Default | |
| Section 8.02. Remedies | |
| Section 8.03. Restoration to Former Position | |
| Section 8.04. Owners’ Right to Direct Proceedings | |
| Section 8.05. Limitation on Owners’ Right to Institute Proceedings | |
| Section 8.06. No Impairment of Right to Enforce Payment | |
| Section 8.07. Proceedings by Trustee without Possession of Bonds | |
| Section 8.08. No Remedy Exclusive | |
| Section 8.09. No Waiver of Remedies | |
| Section 8.10. Application of Moneys | |
| Section 8.11. Severability of Remedies | |
Article IX Trustee; Paying Agent; Registrar | |
| Section 9.01. Acceptance of Trusts | |
| Section 9.02. No Responsibility for Recitals | |
| Section 9.03. Limitations on Liability | |
| Section 9.04. Compensation, Expenses and Advances | |
| Section 9.05. Notice of Events of Default, Etc. | |
| | |
| | |
| | | | | | | | |
| Section 9.06. Action by Trustee | |
| Section 9.07. Good Faith Reliance | |
| Section 9.08. Dealings in Bonds and with the Issuer and the Company | |
| Section 9.09. Construction of Indenture | |
| Section 9.10. Resignation of Trustee | |
| Section 9.11. Removal of Trustee | |
| Section 9.12. Appointment of Successor Trustee | |
| Section 9.13. Qualifications of Trustee | |
| Section 9.14. Judicial Appointment of Successor Trustee | |
| Section 9.15. Acceptance of Trusts by Successor Trustee | |
| Section 9.16. Successor by Merger or Consolidation | |
| Section 9.17. Standard of Care | |
| Section 9.18. Notice of Event of Default | |
| Section 9.19. Intervention in Litigation of the Issuer | |
| Section 9.20. Paying Agent | |
| Section 9.21. Qualifications of Paying Agent; Resignation; Removal | |
| Section 9.22. Registrar | |
| Section 9.23. Qualifications of Registrar; Resignation; Removal | |
| Section 9.24. Several Capacities | |
| Section 9.25. Appointment of Co-Trustee | |
Article X Execution of Instruments by Owners and Proof of Ownership of Bonds | |
| Section 10.01. Execution of Instruments; Proof of Ownership | |
Article XI Modification of This Indenture and the Loan Agreement | |
| Section 11.01. Limitations | |
| Section 11.02. Supplemental Indentures without Consent of Owners | |
| Section 11.03. Supplemental Indentures with Consent of Owners | |
| Section 11.04. Effect of Supplemental Indenture | |
| Section 11.05. Consent of the Company | |
| Section 11.06. Amendment of Loan Agreement without Consent of Owners | |
| Section 11.07. Amendment of Loan Agreement with Consent of Owners | |
| Section 11.08. Irrevocable Consent | |
Article XII Miscellaneous | |
| Section 12.01. Successors of the Issuer | |
| Section 12.02. Parties in Interest | |
| Section 12.03. Severability | |
| Section 12.04. No Personal Liability of Officials of the Issuer | |
| Section 12.05. Model Public Obligations Registration Act of Montana | |
| Section 12.06. Bonds Owned by the Issuer or the Company | |
| Section 12.07. Counterparts | |
| | |
| | |
| | | | | | | | |
| Section 12.08. Governing Law | |
| Section 12.09. Notices | |
| Section 12.10. Holidays | |
Exhibit A — Form of Bond
Indenture of Trust
This Indenture of Trust, dated as of June 1, 2023, between the City of Forsyth, Rosebud County, Montana, a municipal corporation and political subdivision organized and existing under the Constitution and laws of the State of Montana (the “Issuer”), and U.S. Bank Trust Company, National Association, a national banking association, as trustee (the “Trustee”).
Witnesseth:
Whereas, the Issuer is authorized by the provisions of the Act (as hereinafter defined) to issue one or more series of its revenue bonds and to loan the proceeds to others for the purpose of defraying the cost of acquiring or improving projects consisting of land, any building or other improvement, and any other real and personal properties deemed necessary in connection therewith, whether or not now in existence, whether located within or without the boundaries of the Issuer, which shall be suitable for, among other things, Electric Energy Generation Facilities (as defined in the Act), including appurtenant land and improvements and personal property that are normally operated together to produce electric power (which includes air and water pollution control facilities and sewage and solid waste disposal facilities);
Whereas, the Issuer is authorized by the provisions of the Act to issue one or more series of its revenue refunding bonds to refund all or a portion of revenue bonds issued under the provisions of the Act;
Whereas, the Act provides that payment of principal of and interest on revenue bonds issued thereunder shall be secured by a pledge of the revenues out of which such revenue bonds shall be payable and may be secured by a pledge of an agreement relating to a project and such other security device as may be deemed most advantageous by the Issuer;
Whereas, the Issuer has heretofore issued and sold $144,660,000 of Pollution Control Revenue Refunding Bonds (NorthWestern Corporation Colstrip Project), Series 2016 (the “Prior Bonds”), all of which will be outstanding on the date of the authentication and delivery of the Bonds (as hereinafter defined), for the purpose of refinancing the cost to The Montana Power Company (the predecessor in interest of the Company, as hereinafter defined) of acquiring and improving the Facilities (as hereinafter defined);
Whereas, the Issuer, by resolution adopted pursuant to and in accordance with the Act, has authorized and undertaken to issue its revenue bonds for the purpose of providing for the payment of a portion of the Prior Bonds upon their redemption;
Whereas, the Issuer and the Company have entered into the Loan Agreement (as hereinafter defined); and
Whereas, the execution and delivery of the Bonds and of this Indenture have been duly authorized and all things necessary to make the Bonds, when executed by the Issuer and authenticated by the Trustee, valid and binding legal obligations of the Issuer and to make this Indenture a valid and binding agreement have been done;
Now, Therefore, for and in consideration of these premises and the mutual covenants herein contained, of the acceptance by the Trustee of the trusts hereby created, of the purchase and acceptance of the Bonds by the Owners (as hereinafter defined) thereof and of the sum of one dollar lawful money of the United States of America to it duly paid by the Trustee at or before the execution and delivery of these presents, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, in order to secure the payment of principal of and premium, if any, and interest on, the Bonds at any time Outstanding (as hereinafter defined) under this Indenture according to their tenor and effect, and the performance and observance by the Issuer of all the covenants and conditions expressed or implied herein and contained in the Bonds, the Issuer does hereby grant, bargain, sell, convey, mortgage, pledge and assign to, and create and grant a security interest in favor of the Trustee, its successors in trust and their assigns forever, in the Trust Estate (as hereinafter defined);
To Have and to Hold all the same with all privileges and appurtenances hereby conveyed and assigned, or agreed or intended so to be, to the Trustee, its successors in trust and their assigns forever;
In Trust Nevertheless, upon the terms and trusts herein set forth for the equal and proportionate benefit and security of all Owners of the Bonds issued under and secured by this Indenture without preference, priority or distinction as to the lien of any Bonds over any other Bonds, except insofar as any terms or conditions of redemption and defeasance, established under this Indenture may afford additional benefit or security for the Bonds;
Provided, However, that if, after the right, title and interest of the Trustee in and to the Trust Estate shall have ceased, terminated and become void in accordance with Article VII hereof, the principal of, and premium, if any, and interest on, the Bonds shall have been paid to the Owners thereof, or shall have been paid to the Company pursuant to Section 4.06 hereof, then and in that case these presents and the estate and rights hereby granted shall cease, determine and be void, and thereupon the Trustee shall cancel and discharge this Indenture and execute and deliver to the Issuer and the Company such instruments in writing as shall be requisite to evidence the discharge hereof; otherwise this Indenture to be and remain in full force and effect.
This Indenture of Trust Further Witnesseth, and it is expressly declared, that all Bonds issued and secured hereunder are to be issued, authenticated and delivered, and the Trust Estate and the other estate and rights hereby granted are to be dealt with and disposed of, under, upon and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes hereinafter expressed, and the Issuer has agreed and covenanted, and does hereby agree and covenant, with the Trustee and with the respective Owners, from time to time, of the Bonds, as follows:
Article I
Definitions
Section 1.01. Definitions. The terms defined in this Article I shall, for all purposes of this Indenture and the Loan Agreement, have the meanings specified herein, unless the context clearly requires otherwise.
“Act” shall mean Sections 90-5-101 to 90-5-114, inclusive, Montana Code Annotated, as from time to time amended.
“Authorized Company Representative” shall mean each person at the time designated to act on behalf of the Company by written certificate furnished to the Issuer and the Trustee containing the specimen signature of such person and signed on behalf of the Company by its Chairman of the Board, President, any Vice President, its Treasurer or any Assistant Treasurer.
“Authorized Denomination” shall mean $5,000 or any integral multiple thereof.
“Bond Counsel” shall mean any firm of nationally recognized bond counsel familiar with the type of transactions contemplated under this Indenture selected by the Company and acceptable to the Trustee.
“Bond Delivery Agreement” shall mean the Bond Delivery Agreement dated as of June 1, 2023, between the Company and the Trustee, and any and all modifications, alterations, amendments and supplements thereto.
“Bond Fund” shall mean the fund created by Section 4.01 hereof.
“Bonds” shall mean the series of bonds created under Section 2.01 hereof.
“Business Day” shall mean any day other than (a) a Saturday, Sunday or legal holiday in the State of Montana, (b) a day on which commercial banks in New York, New York, or any other city or cities in which the Principal Office of the Trustee are authorized or required by law to close, (c) a day on which the New York Stock Exchange is closed, or (d) a day on which interbank wire transfers cannot be made on the Fedwire system.
“1954 Code” shall mean the Internal Revenue Code of 1954, as amended.
“Code” shall mean the Internal Revenue Code of 1986, as amended. Each reference to a section of the Code herein shall be deemed to include the United States Treasury Regulations proposed or adopted thereunder, as the same may be in effect from time to time, to the extent the same are applicable to the Bonds or the use of proceeds thereof, unless the context clearly requires otherwise.
“Company” shall mean NorthWestern Corporation, a corporation organized and existing under the laws of the State of Delaware, its permitted successors and their permitted assigns.
“Determination of Taxability” shall mean:
(a) a final determination by any court of competent jurisdiction or a final determination by the Internal Revenue Service to which the Company shall consent or from which no timely appeal shall be taken to the effect that interest on the Bonds is not excludible from gross income of the Owners thereof for federal income tax purposes;
(b) ninety (90) days after receipt by the Issuer, the Trustee or the Company of written notice that the Internal Revenue Service has issued a “notice of deficiency” or similar notice to any present or former Owner of a Bond assessing a tax in respect of any interest on the Bonds as a result of such interest not being excludible from gross income for federal income tax purposes, provided that such notice has not been withdrawn by the Internal Revenue Service and from which such Owner (or the Company or the Trustee on behalf of the Owner, if allowable) has not filed a timely petition in the United States Tax Court contesting the same; or
(c) the delivery to the Company, the Trustee and the Issuer of an opinion of Bond Counsel to the effect that (i) interest on the Bonds is not excludible from the gross income of an Owner thereof for federal income tax purposes, (ii) redemption of some or all of the Bonds is required under the terms of a settlement or closing agreement with the Internal Revenue Service of an audit of the Bonds or under the terms of a closing agreement with the Internal Revenue Service pursuant to the Voluntary Closing Agreement Program, or any successor to such program, or (iii) redemption of some or all of the Bonds is required in order to effect a remedial action, as described in Treas. Reg. §1.142-2 or other applicable Treasury regulation, necessary to protect the tax-exemption of the Bonds.
Notwithstanding the foregoing, in no event shall the imposition of an alternative minimum tax or preference tax or branch profits tax on any Owner of the Bonds, the calculation of which included the interest on the Bonds, be considered a Determination of Taxability.
“DTC” shall mean The Depository Trust Company, New York, New York, and its successors and assigns.
“Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Facilities” shall mean the real and personal properties, facilities, machinery and equipment currently existing at the Project, which are described in Exhibit A to the Loan Agreement, as revised from time to time to reflect any changes therein, additions thereto, substitutions therefor and deletions therefrom.
“First Mortgage Bonds” shall mean the series of bonds issued and delivered under the Mortgage and the Supplemental Indenture, and held by the Trustee pursuant to the Bond Delivery Agreement.
“Government Obligations” shall mean direct obligations of (including obligations issued or held in book-entry form on the books of) the Department of the Treasury of the United States of America.
“Indenture” shall mean this Indenture of Trust and any and all modifications, alterations, amendments and supplements hereto.
“Inter-Company Agreements” shall mean (a) the Common Facilities Agreement, dated as of May 6, 1981, among The Montana Power Company, Puget Sound Power & Light Company, Puget Colstrip Construction Company, The Washington Water Power Company, Portland General Electric Company and Pacific Power & Light Company, as from time-to-time amended and supplemented, (b) the Ownership and Operating Agreement, dated as of May 6, 1981, among The Montana Power Company and First Trust Company of Montana, Puget Sound Power & Light Company, Puget Colstrip Construction Company, The Washington Water Power Company, Portland General Electric Company and Pacific Power & Light Company, as from time-to-time amended and supplemented, (c) the Asset Purchase Agreement, dated as of October 31, 1998, by and between PPL Global, Inc. and The Montana Power Company, as from time to time amended and supplemented, and (d) any and all other agreements to which the Company is a party or under which the Company has rights, whether in effect as of or subsequent to the date hereof, relating to the ownership, construction and operation of the Project.
“Interest Payment Date” shall mean each January 1 and July 1, commencing January 1, 2024.
“Investment Securities” shall mean, subject to the provisions of Article V hereof, any of the following obligations or securities on which neither the Company nor any of its subsidiaries is the obligor:
(a) bonds or other obligations of the United States of America;
(b) bonds or other obligations, the payment of the principal and interest of which is unconditionally guaranteed by the United States of America;
(c) obligations issued or guaranteed as to principal and interest by any agency or person controlled or supervised by and acting as an instrumentality of the United States of America pursuant to authority granted by the Congress of the United States of America;
(d) securities or receipts evidencing ownership interests in obligations or specified portions (such as principal or interest) of obligations described in (a), (b) or (c) above;
(e) commercial or financial company paper which is rated at least P-1 or A-1 (or an equivalent) by a nationally recognized statistical rating organization (including investments in pools of such commercial or finance company paper owned by the Trustee);
(f) obligations issued or guaranteed by any state of the United States of America, or any political subdivision of any such state, which are rated at least A (or an equivalent) by a nationally recognized statistical rating organization, or funds comprised of such obligations (and/or non-rated obligations considered to be the equivalent thereof by the management of any such fund);
(g) certificates of deposit issued by commercial banks having a reported capital and surplus of at least $500,000,000;
(h) shares of a money market mutual fund or other collective investment fund registered under the federal Investment Company Act of 1940, whose shares are registered under the federal Securities Act of 1933, having assets of at least $100,000,000, and having a rating of AAAm or AAAm-G by a nationally recognized statistical rating organization, including money market mutual funds from which the Trustee or its affiliates derive a fee for investment advisory or other services to the fund; or
(i) any other investment not prohibited by applicable law (as evidenced by an opinion of counsel furnished to the Trustee).
“Issue Date” shall mean the date of initial authentication and delivery of the Bonds.
“Issuer” shall mean the City of Forsyth, Rosebud County, Montana, a municipal corporation and political subdivision organized and existing under the Constitution and laws of the State of Montana, its successors and their assigns.
“Letter of Representation” shall mean the Blanket Issuer Letter of Representations to DTC from the Issuer, dated as of June 12, 2023.
“Loan Agreement” shall mean the Loan Agreement, dated as of June 1, 2023, between the Issuer and the Company and any and all modifications, alterations, amendments and supplements thereto.
“Mortgage” shall mean the Mortgage and Deed of Trust, dated as of October 1, 1945, from the Company to the Mortgage Trustee, as heretofore and hereafter supplemented and amended.
“Mortgage Trustee” shall mean, collectively The Bank of New York Mellon and Mary Miselis, as trustees under the Mortgage, their successors in trust and their assigns.
“Original Bonds” shall mean, collectively, the (a) $25,000,000 original aggregate principal amount of Adjustable Rate Pollution Control Revenue Bonds (The Montana Power Company Colstrip Project), Series 1984, issued by the Issuer, (b) $39,660,000 original aggregate principal amount of Collateralized Variable Rate Pollution Control Revenue Bonds (The Montana Power Company Colstrip Project), Series 1984B, issued by the Issuer and (c) $80,000,000 original aggregate principal amount of Collateralized Pollution Control Revenue Bonds (The Montana Power Company Colstrip Project), Series 1984A issued by the Issuer.
“Outstanding,” when used in reference to the Bonds, shall mean, as of any particular date and subject to Section 12.06 hereof, the aggregate of all Bonds authenticated and delivered under the Indenture except:
(a) those canceled at or prior to such date or delivered to or held by the Trustee at or prior to such date for cancellation;
(b) those deemed to be paid in accordance with Article VII hereof; and
(c) those in lieu of or in exchange or substitution for which other Bonds shall have been authenticated and delivered pursuant to this Indenture, unless proof satisfactory to the Trustee and the Company is presented that such Bond is held by a bona fide holder in due course.
“Owner” shall mean the Person in whose name any Bond is registered upon the registration books maintained pursuant to Section 2.07 hereof.
“Participants” shall mean those broker-dealers, banks and other financial institutions from time to time for which DTC holds Bonds as Securities Depository.
“Paying Agent” shall mean the Paying Agent appointed in accordance with Section 9.20 hereof.
“Principal Office” of the Paying Agent shall mean the office thereof designated to the Issuer, the Company and the Trustee unless the Paying Agent is the Trustee in which case the “Principal Office” of the Paying Agent shall mean the “Principal Office” of the Trustee relating to payments on the Bonds or, if the location of the “Principal Office” of the Trustee is different from that of the Paying Agent, at the “Principal Office” of the Paying Agent designated in writing to the Issuer and the Company.
“Person” shall mean one or more individuals, estates, joint ventures, joint-stock companies, partnerships, associations, corporations, trusts or unincorporated organizations, and one or more governments or agencies or political subdivisions thereof.
“Prior Bonds” shall mean the bonds of the Issuer described in the fourth Recital hereof.
“Project” shall mean Units Nos. 3 and 4 of the Colstrip Generating Station and any additions or improvements thereto or replacements thereof.
“Receipts and Revenues of the Issuer from the Loan Agreement” shall mean all moneys paid or payable by the Company to the Trustee, for the account of the Issuer, in respect of the principal of, and premium, if any, and interest on, the Bonds, pursuant to Sections 4.04 and 9.01 of the Loan Agreement and the First Mortgage Bonds, and all receipts of the Trustee which, under the provisions of the Indenture, reduce the amount of such payments.
“Record Date” shall mean the day, whether or not a Business Day, which is the fifteenth date of the month prior to an Interest Payment Date.
“Registrar” shall mean the registrar appointed in accordance with Section 9.22 hereof. “Principal Office” of the Registrar shall mean the office thereof designated to the Issuer, the Company and the Trustee unless the Registrar is the Trustee in which case the “Principal Office” of the Registrar shall mean the “Principal Office” of the Trustee relating to the exchange, transfer or surrender of the Bonds or, if the location of the “Principal Office” of the Trustee is different from that of the Registrar, at the “Principal Office” of the Registrar designated in writing to the Issuer and the Company.
“Resolution” shall mean the resolution duly adopted and approved by the Mayor and the City Council of the Issuer on June 12, 2023, authorizing the issuance and sale of the Bonds and the execution of this Indenture and the Loan Agreement.
“Securities Depository” shall mean DTC, or, in accordance with then-current guidelines of the Securities and Exchange Commission, such other securities depository, or no such depository, as the Company may designate in a certificate delivered to the Trustee.
“Series 1993 Bonds” means, collectively, the (a) $90,205,000 original aggregate principal amount of Pollution Control Revenue Refunding Bonds (The Montana Power Company Colstrip Project), Series 1993A, issued by the Issuer and (b) $80,000,000 original aggregate principal amount of Pollution Control Revenue Refunding Bonds (The Montana Power Company Colstrip Project), Series 1993B, issued by the Issuer.
“Series 2006 Bonds” means the $170,205,000 original aggregate principal amount of Pollution Control Revenue Refunding Bonds (NorthWestern Corporation Colstrip Project), Series 2006, issued by the Issuer.
“Supplemental Indenture” shall mean the Forty-Fourth Supplemental Indenture, dated as of June 1, 2023, supplementing the Mortgage and providing for the issuance of the First Mortgage Bonds.
“Tax Certificate” shall mean the Tax Exemption Certificate and Agreement, dated as of the date of delivery of the Bonds, among the Issuer, the Company and the Trustee.
“Trust Estate” shall mean at any particular time (i) all right, title and interest of the Issuer in and to the Loan Agreement (except its rights under Sections 5.03, 5.04, 5.05, 6.03, 6.04, 8.05, and 8.07 thereof and any rights of the Issuer to receive notices, certificates, requests, requisitions, directions and other communications thereunder), including without limitation its right to the
Receipts and Revenues of the Issuer from the Loan Agreement, (ii) the First Mortgage Bonds issued and delivered by the Company to the Trustee pursuant to the Bond Delivery Agreement, (iii) all moneys and obligations which at such time are deposited or are required to be deposited with, or are held or are required to be held by or on behalf of, the Trustee in trust under any of the provisions of this Indenture and (iv) all other rights, titles and interests which at such time are subject to the lien of this Indenture, except for moneys or obligations deposited with or paid to the Trustee for the redemption or payment of Bonds which are deemed to have been paid in accordance with Article VII hereof and funds held pursuant to Section 4.06 hereof.
“Trustee” shall mean U.S. Bank Trust Company, National Association, a national banking association, as Trustee under this Indenture, and its successors in trust hereunder. “Principal Office” of the Trustee shall mean the designated corporate trust office of the Trustee, which office at the date of acceptance by the Trustee of the duties and obligations imposed on the Trustee by this Indenture is located at U.S. Bank Global Corporate Trust, Attn: Bondholder Services, 111 Fillmore Avenue East, St. Paul, Minnesota 55107-1402; provided that with respect to payments on the Bonds and any exchange, transfer, or surrender of the Bonds “Principal Office” shall mean c/o U.S. Bank Global Corporate Trust, Attn: Bondholder Services, 111 Fillmore Avenue East, St. Paul, Minnesota 55107-1402or such other location designated in writing by the Trustee.
Article II
The Bonds
Section 2.01. Authority for and Issuance of Bonds. (a) There are hereby authorized and created under this Indenture a series of bonds entitled to the equal and ratable benefit, protection and security of this Indenture designated the “City of Forsyth, Rosebud County, Montana, Pollution Control Revenue Refunding Bonds (NorthWestern Corporation Colstrip Project) Series 2023.”
The Bonds shall be issued in the aggregate principal amount of $144,660,000, shall bear interest at the rate of three and seven eighths percent (3.875%) per annum and shall mature, subject to prior redemption, on July 1, 2028.
The Bonds shall be issuable as fully registered Bonds without coupons in the Authorized Denominations. The Bonds shall be numbered from 1 consecutively upwards.
(b) Interest on the Bonds shall be paid on each Interest Payment Date. Interest on the Bonds shall be computed upon the basis of a 360-day year, consisting of twelve 30-day months.
The Issue Date of the Bonds shall be the date of initial authentication and delivery thereof. Bonds authenticated prior to the first Interest Payment Date shall bear interest from the Issue Date. Bonds authenticated on or after the first Interest Payment Date shall bear interest from the Interest Payment Date next preceding the date of authentication thereof unless such date of authentication shall be an Interest Payment Date to which interest on the Bonds has been paid in full or duly provided for, in which case the Bonds shall bear interest from such date of
authentication; provided, however, that (i) Bonds authenticated on a date which is subsequent to a Record Date for the payment of interest and prior to the related Interest Payment Date shall bear interest from such Interest Payment Date, and (ii) if, as shown by the records of the Trustee, interest on the Bonds shall be in default, Bonds issued in exchange for or upon the registration of transfer of Bonds shall bear interest from the date to which interest has been paid in full or duly provided for or, if no interest has ever been paid on the Bonds or duly provided for, from the Issue Date. Each Bond shall bear interest on overdue principal and, to the extent permitted by law, on overdue premium, if any, and interest at the rate borne by the Bonds.
(c) The Bonds and the certificate of authentication to be executed on all the Bonds by the Trustee are to be in substantially the forms thereof set forth in Exhibit A hereto with necessary or appropriate variations, omissions and insertions as permitted or required by this Indenture. The Bonds may bear such legends as shall be provided herein or as may be approved by the Company and acceptable to the Trustee. The Bonds shall be printed, engraved, typewritten or prepared in such other manner as the Issuer, with the approval of the Company, shall determine.
(d) Principal of and premium, if any, on the Bonds shall be payable to the Owners of such Bonds upon presentation and surrender of such Bonds at the Principal Office of the Paying Agent; provided, however, that, for so long as the Owner shall be a Securities Depository (or its nominee) for purposes of a book-entry system of payments and transfers, Bonds need not be so presented and surrendered prior to payment upon a partial redemption thereof, to the extent so provided in an instrument agreed to by such Securities Depository and the Company and accepted by the Trustee. Interest on the Bonds shall be paid by check drawn upon the Paying Agent and mailed to the Owners of such Bonds at the registered addresses of such Owners as they shall appear on the registration books maintained pursuant to Section 2.07 hereof on the close of business on the fifteenth (15th) day (whether or not a Business Day) next preceding each Interest Payment Date or at such other address as may be furnished in writing by such Owner to the Registrar at least 15 days prior to the Interest Payment Date; provided, however, that, for so long as the Owner shall be a Securities Depository (or its nominee) for purposes of a book-entry system of payments and transfers, interest on the Bonds shall be paid on each Interest Payment Date by wire transfer to the account designated by such Securities Depository with a commercial bank in the United States of America or by such other means and to such other recipient as shall be provided in an instrument agreed to by such Securities Depository and the Company and accepted by the Trustee; and provided, further, that Owners of $1,000,000 or more in aggregate principal amount of Bonds, upon at least 15 days’ prior written notice to the Paying Agent, may direct that all payments of interest be made to such Owners on each payment date by wire transfer to their accounts with commercial banks in the United States of America in accordance with instructions set forth in such notices. Each such notice shall be effective until otherwise modified or rescinded by written notice given to the Paying Agent at least 15 days prior to an Interest Payment Date. Payment as aforesaid shall be made in such coin or currency of the United States of America as, at the respective times of payment, shall be legal tender for the payment of public and private debts.
(e) The Issuer and the Trustee may from time to time, at the direction of the Company, enter into and discontinue arrangements with any Securities Depository.
Section 2.02. Execution of Bonds. The Bonds shall be executed on behalf of the Issuer with the manual or facsimile signature of its Mayor and attested with the manual or facsimile signature of its City Clerk, and shall have impressed or imprinted thereon the corporate seal of the Issuer or a facsimile thereof. The Bonds shall be authenticated with the manual signature of the Trustee.
In case any officer of the Issuer whose signature or a facsimile of whose signature shall appear on the Bonds shall cease to be such officer before the authentication of such Bonds, such signature or the facsimile thereof shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until authentication; and any Bond may be signed on behalf of the Issuer by such persons as are at the time of execution of such Bond proper officers of the Issuer, even though at the date of this Indenture such person was not such officer.
Section 2.03. Authentication of Bonds. Only such Bonds as shall have endorsed thereon a certificate of authentication substantially in the form set forth in Exhibit A duly executed by the Trustee shall be entitled to any right or benefit under this Indenture. No Bond shall be valid or obligatory for any purpose unless and until such certificate of authentication shall have been duly executed by the Trustee, and such executed certificate of the Trustee upon any such Bonds shall be conclusive evidence that such Bond has been authenticated and delivered under this Indenture. The Trustee’s certificate of authentication on any Bond shall be deemed to have been executed by it if signed by an authorized officer of the Trustee, but it shall not be necessary that the same person sign the certificate of authentication on all of the Bonds issued hereunder.
Section 2.04. Bonds Not General Obligations. The Bonds, together with premium, if any, and interest thereon, shall be limited obligations of the Issuer giving rise to no pecuniary liability of the Issuer nor any charge against its general credit or taxing powers, shall be payable solely from the Receipts and Revenues of the Issuer from the Loan Agreement and the other moneys pledged therefor under this Indenture, and shall be a valid claim of the respective Owners thereof only against the Bond Fund, the Receipts and Revenues of the Issuer from the Loan Agreement and other moneys held by the Trustee as part of the Trust Estate.
No recourse shall be had for the payment of the principal of, or premium, if any, or interest on, any of the Bonds or for any claim based thereon or upon any obligation, covenant or agreement in this Indenture contained, against any past, present or future officer or employee of the Issuer or the Company, or any incorporator, officer, director or member of any successor corporation, as such, either directly or through the Issuer, the Company or any successor corporation, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such officer, employee, incorporator, director or member as such is hereby expressly waived and released as a condition of and in consideration for the execution of this Indenture and the issuance of any of the Bonds.
Section 2.05. Prerequisites to Authentication of Bonds. The Issuer shall execute and deliver to the Trustee and the Trustee shall authenticate and deliver the Bonds to the initial purchasers thereof as directed hereinafter in this Section 2.05.
Prior to the delivery on original issuance by the Trustee of any authenticated Bonds, there shall be or have been delivered to the Trustee:
(a) a duly certified copy of the Resolution of the governing authority of the Issuer authorizing the issuance of the Bonds;
(b) an original duly executed counterpart or a duly certified copy of the Loan Agreement and this Indenture;
(c) (i) an original duly executed counterpart or a duly certified copy of the Supplemental Indenture and (ii) the series of First Mortgage Bonds to be issued as provided in Section 5.01 of the Loan Agreement;
(d) a request and authorization to the Trustee on behalf of the Issuer, signed by its Mayor or any other duly authorized signatory, to authenticate and deliver the Bonds in the aggregate principal amount authorized by this Indenture to the purchasers therein identified, upon delivery to the trustee for the Prior Bonds of the proceeds of the Bonds and all amounts necessary from the Company pursuant to Section 4.03(b) of the Loan Agreement and upon delivery to the Trustee of the amounts, if any, specified in such request and authorization to be deposited into the Bond Fund pursuant to Section 4.03(i) hereof;
(e) a written statement on behalf of the Company, executed by an Authorized Company Representative (i) approving the issuance and delivery of the Bonds and (ii) consenting to each and every provision of this Indenture;
(f) an opinion of counsel as to the validity of (i) the Bond Delivery Agreement; (ii) the First Mortgage Bonds; (iii) the Mortgage; (iv) the Supplemental Indenture and (v) the lien of the Bond Delivery Agreement and the Mortgage;
(g) the opinion of counsel required by Section 6.06 of the Loan Agreement; and
(h) an opinion of Bond Counsel that the Bonds have been validly issued under this Indenture and all requirements of this Indenture precedent to the delivery of such Bonds have been satisfied.
Section 2.06. Lost or Destroyed Bonds or Bonds Canceled in Error. If any Bond shall be lost (whether by reason of theft or otherwise), destroyed (whether by mutilation, damage, in whole or in part, or otherwise) or canceled in error, the Issuer may execute and the Trustee may authenticate a new Bond of like denomination and bearing an identification number not contemporaneously outstanding; provided that, (a) in the case of any mutilated Bond, such mutilated Bond shall first be surrendered to the Trustee and (b) in the case of any lost Bond or Bond destroyed in whole, there shall be first furnished to the Issuer, the Trustee and the Company evidence of such loss or destruction. In every case, the applicant for a substitute Bond shall furnish the Issuer, the Trustee and the Company such security or indemnity as may be
required by any of them. In the event any lost or destroyed Bond or Bond canceled in error shall have matured or is about to mature, or has been called for redemption, instead of issuing a substitute Bond the Issuer may, in its discretion, pay the same (in the case of loss or destruction, without surrender thereof if there shall be first furnished to the Issuer, the Trustee and the Company evidence of such loss or destruction together, in every case, with security or indemnity as may be required by any of them). Upon the issuance of any substitute Bond, the Issuer and the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. The Trustee may charge the Owner of any such Bond with the Trustee’s reasonable fees and expenses in connection with its compliance with this Section.
Every substitute Bond issued pursuant to the provisions of this Section by virtue of the fact that any Bond is lost, destroyed or canceled in error shall constitute an additional contractual obligation of the Issuer, whether or not the Bond so lost, destroyed or canceled shall be at any time enforceable, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all Bonds duly issued hereunder. All Bonds shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of lost, destroyed or improperly canceled Bonds, notwithstanding any law or statute now existing or hereafter enacted.
Section 2.07. Registration, Registration of Transfer, and Exchange of Bonds. The Registrar shall maintain and keep, at its Principal Office, books for the registration and registration of transfer of Bonds, which, at all reasonable times, shall be open for inspection by the Issuer, the Company and the Trustee; and upon presentation for such purpose of any Bond entitled to registration or registration of transfer at the Principal Office of the Registrar, the Registrar shall register such Bond or the transfer thereof in such books, under such reasonable regulations as the Registrar may prescribe. The Registrar shall make all necessary provisions to permit the exchange or registration of transfer of Bonds at its Principal Office.
The transfer of any Bond shall be registered upon the registration books of the Registrar at the written request of the Owner thereof or his attorney duly authorized in writing, upon surrender thereof at the Principal Office of the Registrar, together with a written instrument of transfer satisfactory to the Registrar duly executed by the Owner or his duly authorized attorney. Upon the registration of transfer of any such Bond or Bonds, the Issuer shall issue in the name of the transferee, in authorized denominations, a new Bond or Bonds, and of like tenor and the same aggregate principal amount as the surrendered Bond or Bonds.
The Issuer, the Trustee, the Registrar and the Paying Agent may deem and treat the Owner of any Bond as the absolute owner of such Bond, whether such Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of, and premium, if any, and interest on, such Bond and for all other purposes, and neither the Issuer, the Trustee, the Registrar nor the Paying Agent shall be affected by any notice to the contrary. All such payments so made to any such Owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid.
Bonds, upon surrender thereof at the Principal Office of the Registrar, may, at the option of the Owner thereof, be exchanged for an equal aggregate principal amount of Bonds of any authorized denomination and of like tenor.
In all cases in which the privilege of exchanging Bonds or registering the transfer of Bonds is exercised, the Issuer shall execute and the Trustee shall authenticate and deliver Bonds in accordance with the provisions of this Indenture. For every such exchange or registration of transfer of Bonds, the Issuer, the Registrar or the Trustee may make a charge sufficient to reimburse it for any tax or other governmental charge required to be paid with respect to such exchange or registration of transfer, which sum or sums shall be paid by the Person requesting such exchange or registration of transfer as a condition precedent to the exercise of the privilege of making such exchange or registration of transfer. The Registrar shall not be obligated (a) to make any such exchange or registration of transfer of Bonds during the fifteen (15) days next preceding an Interest Payment Date or the mailing of notice of any proposed redemption of such Bonds or (b) to make any exchange or registration of transfer of any Bonds called for redemption except the unredeemed portion of any Bond redeemed in part.
Section 2.08. Other Obligations. The Issuer expressly reserves the right to issue, to the extent permitted by law, obligations under another indenture or indentures to provide funds to refund all or any principal amount of the Bonds.
Section 2.09. Cancellation of Bonds. All Bonds which shall have been surrendered to the Paying Agent for payment or redemption, and all Bonds which shall have been surrendered to the Registrar for exchange or registration of transfer, shall be delivered to the Trustee for cancellation. All Bonds delivered to or acquired by the Trustee for cancellation shall be canceled and disposed of by the Trustee. The Trustee shall furnish to the Issuer, the Paying Agent, the Registrar and the Company counterparts of certificates evidencing such cancellation and disposition and specifying such Bonds by series designation and number.
Section 2.10. Payment of Principal and Interest. For the payment of interest on the Bonds, the Issuer shall cause to be deposited in the Bond Fund, on or prior to each Interest Payment Date for the Bonds, solely out of the Receipts and Revenues of the Issuer from the Loan Agreement and other moneys pledged therefor, an amount sufficient to pay the interest to become due on such Interest Payment Date. The obligation of the Issuer to cause any such deposit to be made hereunder shall be reduced by the amount of moneys in the Bond Fund available on such Interest Payment Date for the payment of interest on the Bonds on such Interest Payment Date.
For the payment of the principal of the Bonds upon maturity or redemption, the Issuer shall cause to be deposited in the Bond Fund, on or prior to the maturity or redemption date of the Bonds, solely out of the Receipts and Revenues of the Issuer from the Loan Agreement and other moneys pledged therefor, an amount sufficient to pay the principal of, premium, if any, and accrued interest on the Bonds. The obligation of the Issuer to cause any such deposit to be made hereunder shall be reduced by the amount of moneys in the Bond Fund available on the maturity
or redemption date for the payment of the principal of the Bonds on such maturity or redemption date.
Section 2.11. Book-Entry System. (a) The Bonds shall be initially issued as a single Bond registered in the name of Cede & Co. (“Cede”), as nominee of DTC, in the registration books kept by the Registrar. Except as provided in subsection (c) below, all of the Bonds outstanding from time to time shall be registered in the registration books kept by the Registrar in the name of Cede, as nominee of DTC.
With respect to Bonds registered in the registration books kept by the Registrar in the name of Cede, as nominee of DTC, the Issuer, the Trustee, the Registrar and the Paying Agent shall have no responsibility or obligation to any Participant or to any Person on behalf of which a Participant holds an interest in the Bonds. Without limiting the immediately preceding sentence, the Issuer, the Trustee, the Registrar and the Paying Agent shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede or any Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Participant or any other Person, other than an Owner as shown in the registration books kept by the Registrar, of any notice with respect to the Bonds, including any notice of redemption, or (iii) the payment to any Participant or any other Person, other than an Owner, as shown in the registration books kept by the Registrar, of any amount with respect to the principal of or premium, if any, or interest on the Bonds. The Issuer, the Trustee, the Registrar and the Paying Agent may treat and consider the Person in whose name each Bond is registered in the registration books kept by the Registrar as the holder and absolute owner of such Bond for the purpose of payment of principal, premium, if any, and interest with respect to such Bond, for the purpose of giving notices of redemption and other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond and for all other purposes whatsoever. The Paying Agent shall pay all principal of and premium, if any, and interest on the Bonds only to the respective Owners, as shown in the registration books kept by the Registrar, as provided in Section 2.01 hereof, and all such payments shall be valid and effective to fully satisfy and discharge the Issuer’s obligations with respect to payment of principal of and premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. So long as the book-entry system described above shall be in effect, no Person other than an Owner, as shown in the registration books kept by the Registrar, shall receive a Bond certificate evidencing the obligation of the Issuer to make payments of principal, premium, if any, and interest pursuant to the Indenture. Upon delivery by DTC to the Issuer or the Trustee of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede, and subject to the provisions herein with respect to Record Dates, the word “Cede” in this Indenture shall refer to such new nominee of DTC; and upon receipt of such a notice the receiving party shall promptly deliver a copy of the same to the other such party, the Registrar and the Paying Agent.
(b) The Issuer’s execution and delivery of the Letter of Representations shall not in any way limit the provisions of this Section 2.11 or in any other way impose upon the Issuer any obligation whatsoever with respect to Persons having interests in the Bonds other than the Owners as shown on the registration books kept by the Registrar. The Trustee shall take all action necessary for all representations of the Issuer in the Letter of Representations with respect to the Trustee, the Paying Agent and the Registrar to be complied with at all times.
(c) DTC may determine to discontinue providing its services with respect to the Bonds at any time by giving reasonable notice to the Issuer or the Trustee and discharging its responsibilities with respect thereto under applicable law. The Issuer, with the consent of the Company, may terminate the services of DTC with respect to the Bonds. In accordance with Section 2.01(e) hereof, upon the discontinuance or termination of the services of DTC with respect to the Bonds, the Issuer and the Trustee, at the direction of the Company, may select and enter into arrangements with a substitute Securities Depository. Unless a substitute Securities Depository is appointed to undertake the functions of DTC hereunder, the Bonds shall no longer be restricted to being registered in the registration books kept by the Registrar in the name of Cede, as nominee of DTC, but may be registered in whatever name or names Owners transferring or exchanging Bonds shall designate in accordance with the provisions of Section 2.07 hereof.
(d) Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is registered in the name of Cede, as nominee of DTC, all payments with respect to principal of and premium, if any, and interest on such Bond and all notices with respect to such Bond shall be made and given, respectively, in the manner provided in the Letter of Representations.
Article III
Redemption
Section 3.01. Redemption Provisions. The Bonds shall be subject to redemption prior to maturity as follows:
(a) The Bonds shall be subject to redemption by the Issuer, in whole or in part, at any time at a redemption price equal to the principal amount of the Bonds to be redeemed plus accrued interest to the redemption date on the ninetieth day (or such earlier date as may be designated by the Company) after a Determination of Taxability, but in no case more than ninety (90) days after such determination. Subject to the foregoing provisions of this Section 3.01(a), the Bonds shall be redeemed in whole unless, in the opinion of Bond Counsel mutually acceptable to the Issuer and the Company, the redemption of a portion of such Bonds would have the result that interest payable on the Bonds remaining Outstanding after such redemption would not be includable in the gross income for federal income tax purposes of any owner of any such Bonds. Any such partial redemption shall be in such amount as is necessary to accomplish such result.
(b) The Bonds shall be subject to mandatory redemption by the Issuer, at the principal amount thereof plus accrued interest to the redemption date, on the 90th day (or such earlier date as may be designated by the Company) after a final determination by a court of competent jurisdiction or an administrative agency, to the effect that, as a result of a failure by the Company to perform or observe any covenant, agreement or warranty contained in the Loan Agreement or any similar agreement of the Company relating to the Prior Bonds or to any bonds of the Issuer which were refunded, directly or indirectly,
by the Prior Bonds, the interest payable on the Bonds is included for federal income tax purposes in the gross income of the owners thereof, other than as a result of any Owner of a Bond being a “substantial user” of the Facilities or a “related person” within the meaning of Section 103(b) of the 1954 Code. No determination by any court or administrative agency shall be considered final for the purposes of this subsection (b) unless the Company shall have been given timely notice of the proceeding that resulted in such determination and an opportunity to participate in such proceeding, either directly or through an Owner of a Bond, to a degree it deems sufficient and until the conclusion of any appellate review sought by any party to such proceeding or the expiration of the time for seeking such review. The Bonds will be redeemed either in whole or in part in such principal amount that the interest payable on the Bonds remaining Outstanding after such redemption would not be included in the gross income of any Owner thereof, other than an Owner of a Bond who is a “substantial user” of the Facilities or a “related person” within the meaning of Section 103(b) of the 1954 Code. If less than all the Bonds are to be redeemed in accordance with this subsection (b), there shall be delivered to the Trustee, as a condition to such partial redemption, together with the notice of the Company pursuant to Section 9.01 of the Loan Agreement, an opinion of Bond Counsel as to the matters set forth in the preceding sentence, including a specification as to the principal amount of such partial redemption.
(c) The Bonds shall be subject to redemption at the option of the Company, in whole, at any time, or from time to time in part, on or after the date that is ninety (90) days prior to the maturity date of the Bonds, at the redemption price equal to 100% of the principal amount to be redeemed, plus accrued interest, if any, to the redemption date.
Section 3.02. Selection of Bonds to Be Redeemed; Purchase In Lieu of Redemption. (a) Subject to Section 2.11(c) hereof regarding DTC procedures, if less than all the Bonds shall be called for redemption, the particular Bonds or portions of Bonds to be redeemed shall be selected by the Trustee pro rata, by lot or by such other method as the Trustee shall deem fair and appropriate, and in the principal amount designated to the Trustee by an Authorized Company Representative or otherwise as required by this Indenture; provided, however, that if, as indicated in a certificate of an Authorized Company Representative delivered to the Trustee, the Company shall have offered to purchase all Bonds then Outstanding and less than all of such Bonds shall have been tendered to the Company for such purchase, the Trustee, at the direction of an Authorized Company Representative, shall select for redemption all such Bonds which have not been so tendered; and provided, further, that, in selecting Bonds for redemption, the Trustee shall treat each Bond as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. If it is determined that one or more, but not all, of the $5,000 units of principal amount represented by any such Bond is to be called for redemption, then, upon notice of intention to redeem such $5,000 unit or units, the Owner of such Bond shall forthwith surrender such Bond to the Paying Agent for (a) payment to such Owner of the redemption price of the $5,000 unit or units of principal amount called for redemption and (b) delivery to such Owner of a new Bond or Bonds in the aggregate principal amount of the unredeemed balance of the principal amount of such Bond. New Bonds representing the unredeemed balance of the principal amount of such Bond shall be issued to the Owner thereof, without charge therefor. If the Owner of any such Bond shall fail to present such Bond to the
Paying Agent for payment and exchange as aforesaid, such Bond shall, nevertheless, become due and payable on the date fixed for redemption to the extent of the units or units of principal amount called for redemption.
(b) Notwithstanding any other provision of this Indenture, at the written direction of an Authorized Company Representative, the Issuer shall cause the Bonds to be purchased in lieu of redemption in connection with any optional redemption of the Bonds. Such option shall be exercised by the Company by delivering to the Trustee a written direction on or prior to the Business Day preceding the redemption date specifying that the Bonds shall not be redeemed, but instead shall be subject to purchase pursuant to this Section. Upon delivery of such notice, the Bonds shall not be redeemed but shall instead be purchased by the Company at a purchase price equal to the redemption price at which the Bonds would have been redeemed hereunder on the date that would have been the redemption date; provided that the payment of funds from the Company in an amount equal to such purchase price shall be made to the Trustee on or prior to the redemption date. Following such purchase, the Trustee shall cause the Bonds to be registered upon the direction of the Company and deliver such Bonds as directed by the Company. No purchase of Bonds by the Company pursuant to this Section or advance or use of any moneys to effectuate any such purchase shall be deemed to be a payment or redemption of the Bonds or any portion thereof, and such purchase shall not operate to extinguish or discharge the indebtedness evidenced by the Bonds.
Section 3.03. Procedure for Redemption. (a) In the event that the Trustee shall have received the notice required to be delivered to it under Section 9.01 of the Loan Agreement with respect to the redemption of Bonds, the Trustee shall give notice, in the name of the Issuer, of the redemption of such Bonds, which notice shall (i) specify the Bonds to be redeemed, the redemption date, the redemption price, and the place where amounts due upon such redemption will be payable and, if less than all of the Bonds are to be redeemed, the numbers of the Bonds, and the portions thereof, so to be redeemed, (ii) state any condition to such redemption and (iii) state that on the redemption date, and upon the satisfaction of any such condition, the Bonds or portions thereof to be redeemed shall cease to bear interest. Such notice may set forth any additional information relating to such redemption which the Company specifies in the notice delivered by the Company to the Trustee pursuant to Section 9.01 of the Loan Agreement. Such notice shall be given by first-class mail at least thirty (30) days prior to the date fixed for redemption to the Owners of Bonds to be redeemed, to the Issuer, to the Company and to the Securities Depository and any other organizations registered with the Securities and Exchange Commission as securities depositories; provided, however, that failure to duly give such notice, or any defect therein, shall not affect the validity of any proceedings for the redemption of Bonds with respect to which no such failure or defect occurred. If a notice of redemption shall be unconditional, or if the conditions of a conditional notice of redemption shall have been satisfied, then upon presentation and surrender of Bonds so called for redemption at the place or places of payment, such Bonds shall be redeemed.
(b) With respect to any notice of redemption of Bonds in accordance with subsection (a) of Section 3.01 hereof, unless, upon the giving of such notice, such Bonds shall be deemed to have been paid within the meaning of Article VII hereof, such notice shall state that such redemption shall be conditional upon the receipt by the Trustee on or prior to the date fixed for
such redemption of moneys sufficient to pay the principal of, and premium, if any, and interest on, such Bonds to be redeemed, and that, if such moneys shall not have been so received, said notice shall be of no force and effect and the Issuer shall not redeem such Bonds. In the event that such notice of redemption contains such a condition and such moneys are not so received, the redemption shall not be made and the Trustee shall, within a reasonable time thereafter, give notice, in the manner in which the notice of redemption was given, that such moneys were not so received.
Section 3.04. No Partial Redemption after Default. Anything in this Indenture to the contrary notwithstanding, if there shall have occurred and be continuing an Event of Default described in clause (a) or (b) of the first paragraph of Section 8.01 hereof, there shall be no redemption of less than all of the Bonds at the time Outstanding.
Article IV
Disposition of Bond Proceeds; the Bond Fund
Section 4.01. Disposition of Bond Proceeds; Creation of Bond Fund. (a) The proceeds of the issuance and sale by the Issuer of the Bonds shall be applied by the Issuer as provided in Section 4.03 of the Loan Agreement.
(b) There is hereby created and established with the Trustee a trust fund in the name of the Issuer to be designated the “City of Forsyth, Rosebud County, Montana, Pollution Control Revenue Refunding Bonds (NorthWestern Corporation Colstrip Project) Series 2023 Bond Fund” (the “Bond Fund”).
Section 4.02. Liens. The Issuer shall not create any lien upon the Bond Fund or upon the Receipts and Revenues of the Issuer from the Loan Agreement other than the lien hereby created.
Section 4.03. Deposits into Bond Fund. There shall be deposited into the Bond Fund:
(i) the accrued interest, if any, on the Bonds to the date of delivery thereof, paid by the initial purchasers of the Bonds;
(ii) all payments by the Company to the Trustee pursuant to Sections 4.04 and 9.01 of the Loan Agreement, including any payments of principal of, and premium, if any, and interest on, the First Mortgage Bonds; and
(iii) all other moneys received by the Trustee under and pursuant to any provision of the Loan Agreement, other than Sections 5.03, 5.04 and 8.05 thereof, or from any other source when accompanied by directions of the Company that such moneys are to be paid into the Bond Fund.
Section 4.04. Use of Moneys in Bond Fund. Except as otherwise provided in Sections 4.06, 4.08, 5.01 and 9.04 hereof, moneys in the Bond Fund shall be used solely for the
payment of the principal of, and premium, if any, and interest on, the Bonds as the same shall become due and payable at maturity, upon redemption or otherwise.
Section 4.05. Custody of Bond Fund; Withdrawal of Moneys. The Bond Fund shall be in the custody of the Trustee but in the name of the Issuer and the Issuer hereby authorizes and directs the Trustee to withdraw from the Bond Fund and furnish to the Paying Agent funds sufficient to pay the principal of, and premium, if any, and interest on, the Bonds as the same shall become due and payable, and to withdraw from the Bond Fund funds sufficient to pay any other amounts payable therefrom as the same shall become due and payable.
Section 4.06. Bonds Not Presented for Payment. In the event any Bonds shall not be presented for payment when the principal thereof and premium, if any, thereon becomes due, either at maturity or at the date fixed for redemption thereof or otherwise or if any interest payment shall be unclaimed, if moneys sufficient to pay such Bonds or interest payment are held by the Paying Agent for the benefit of the Owners thereof, the Paying Agent shall segregate and hold such moneys in trust, without liability for interest thereon, for the benefit of Owners of such Bonds, who shall, except as provided in the following paragraph, thereafter be restricted exclusively to such fund or funds for the satisfaction of any claim of whatever nature for the payment of the principal, premium, if any, or interest with respect to which such moneys shall be held on their part under this Indenture or such Bonds.
Any moneys which the Paying Agent shall segregate and hold in trust for the payment of the principal of, and premium, if any, or interest on, any Bond and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall, upon the Company’s written request to the Paying Agent, be paid to the Company, with notice to the Trustee of such action. After the payment of such unclaimed moneys to the Company, the Owner of such Bond shall thereafter look only to the Company for the payment thereof, and all liability of the Issuer, the Trustee and the Paying Agent with respect to such moneys shall thereupon cease.
Section 4.07. Moneys Held in Trust. All moneys required to be deposited with or paid to the Trustee for deposit into the Bond Fund under any provision hereof and all moneys withdrawn from the Bond Fund and held by the Trustee or the Paying Agent shall be held by the Trustee or the Paying Agent, as the case may be, in trust, and such moneys (other than moneys held pursuant to Section 4.06 hereof) shall, while so held, constitute part of the Trust Estate and be subject to the lien hereof.
Section 4.08. Payment to the Company. Any moneys remaining in the Bond Fund after the right, title and interest of the Trustee in and to the Trust Estate and all covenants, agreements and other obligations of the Issuer under this Indenture shall have ceased, terminated and become void and shall have been satisfied and discharged in accordance with Article VII hereto, shall be paid to the Company.
Article V
Investments
Section 5.01. Investments. The moneys in the Bond Fund and any other funds or accounts established pursuant to this Indenture shall, at the direction of an Authorized Company Representative, be invested and reinvested in specified Investment Securities. Subject to the further provisions of this Section, such investments shall be made by the Trustee as directed and designated by the Company in a certificate of, or telephonic advice promptly confirmed by a certificate of, an Authorized Company Representative, such certificate to state that any such investment is permitted hereunder and can be made without violation of any provision hereof or of the Tax Certificate. In the absence of such direction from an Authorized Company Representative, the Trustee shall invest moneys in the Bond Fund in obligations or securities described in clauses (a) or (b) under the definition of Investment Securities. All profits and losses on investments shall be credited or charged to the Bond Fund, as appropriate. As and when any amounts thus invested may be needed for disbursements from the Bond Fund, the Trustee, shall cause a sufficient amount of such investments to be sold or otherwise converted into cash to the credit of such fund. As long as no Event of Default (as defined in Section 8.01 hereof) shall have occurred and be continuing, the Company shall have the right to designate the investments to be sold and to otherwise direct the Trustee in the sale or conversion to cash of the investments made with the moneys in the Bond Fund; provided that the Trustee shall be entitled to conclusively assume the absence of any such Event of Default unless it has notice thereof within the meaning of Section 9.05 hereof.
The Trustee shall be entitled to rely on each certificate and advice delivered pursuant to the preceding paragraph and the Trustee shall have no liability with respect to any investment designated pursuant thereto or for any loss resulting from any investment or sale thereof pursuant to this Section or for any action taken pursuant to this Section that causes the Bonds to be treated as “arbitrage bonds” within the meaning of Section 148 of the Code.
The Company acknowledges that regulations of the Comptroller of the Currency grant the Company the right to receive brokerage confirmations of security transactions as they occur. The Company specifically waives such confirmations to the extent permitted by law and will receive periodic cash transaction statements from the Trustee which will detail all investment transactions.
Article VI
General Covenants and the First Mortgage Bonds
Section 6.01. Not General Obligations. Each and every covenant made herein by the Issuer is predicated upon the condition that the Issuer shall not in any event be liable for the payment of the principal of, or premium, if any, or interest on, the Bonds, or for the performance of any pledge, mortgage, obligation or agreement created by or arising under this Indenture or the Bonds, from any property other than the Trust Estate; and, further, that neither the Bonds nor any such obligation or agreement of the Issuer shall be construed to constitute an indebtedness of
the Issuer within the meaning of any constitutional or statutory provision whatsoever, or as a pecuniary liability of the Issuer or a charge against its general credit or taxing power.
The Issuer shall promptly cause to be paid, solely from the sources stated herein, the principal of, and premium, if any, and interest on, every Bond issued under this Indenture at the place, on the dates and in the manner provided herein and in said Bonds according to the true intent and meaning thereof.
Section 6.02. Performance of Covenants of the Issuer; Representations. The Issuer shall faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in any and every Bond executed, authenticated and delivered hereunder, and in all proceedings pertaining thereto. The Issuer represents that it is duly authorized under the Constitution and laws of the State of Montana to issue the Bonds authorized hereby, to enter into the Loan Agreement, and to pledge and assign to the Trustee the Trust Estate and that the Bonds in the hands of the Owners thereof are and will be valid and binding obligations of the Issuer.
Section 6.03. Maintenance of Corporate Existence; Compliance with Laws. The Issuer shall at all times use its best efforts to maintain its corporate existence, and it shall use its best efforts to comply with all valid acts, rules, regulations, orders and directions of any legislative, executive, administrative or judicial body known to it to be applicable to the Loan Agreement and this Indenture.
Section 6.04. Enforcement of Obligations of the Company; Amendments. Upon receipt of written notification from the Trustee, the Issuer shall cooperate with the Trustee in enforcing the obligation of the Company to pay or cause to be paid all the payments and other costs and charges payable by the Company under the Loan Agreement. The Issuer shall not enter into any agreement with the Company amending the Loan Agreement without the prior written consent of the Trustee and compliance with Sections 11.06 and 11.07 hereof.
Section 6.05. Further Instruments. The Issuer, upon the reasonable request of the Trustee, shall execute and deliver, from time to time, such further instruments and take such further action as may be reasonable and as may be required to carry out the purposes of this Indenture.
Section 6.06. No Disposition of Trust Estate. Except as permitted by this Indenture, the Issuer shall not sell, lease, pledge, assign or otherwise dispose of or encumber its interest in the Trust Estate and will promptly pay or cause to be discharged or make adequate provision to discharge any lien or charge on any part thereof not permitted hereby.
Section 6.07. Access to Books. All books and documents in the possession of the Issuer relating to the Facilities and the moneys, revenues or receipts derived from the Facilities shall at all reasonable times be open to inspection by such accountants or other agencies as the Trustee may from time to time designate.
Section 6.08. Arbitrage and Tax Exemption Certifications and Covenants. The Issuer covenants for the benefit of the Owners from time to time of the Bonds that, so long as any of the Bonds remain Outstanding, it will not take any action, or permit to be taken any action, and that moneys on deposit in any fund or account in connection with the Bonds, whether or not such moneys were derived from the proceeds of the sale of the Bonds or from any other sources, will not be used or invested in a manner, which will cause the Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code or which will otherwise cause interest on the Bonds to be includable in the gross income of the Owners thereof for purposes of federal income taxation. To such end, the Issuer has entered into the Tax Certificate. The Issuer covenants and agrees that it will comply with the Tax Certificate, as the same may be amended from time to time, in accordance with its terms. Pursuant to such covenant, the Issuer obligates itself to comply with the requirements of Section 148 of the Code, so long as any of the Bonds are Outstanding. The Issuer shall not be deemed to have violated this covenant by virtue of the fact that interest on any of the Bonds becomes includable in gross income of a Person who is a “substantial user” of the Facilities or a “related person” within the meaning of Section 103(b) of the 1954 Code.
Section 6.09. Notices of Trustee. The Trustee shall give notice to the Issuer and the Company whenever the Trustee is required hereby to give notice to either of them and, additionally, shall furnish to the Issuer and the Company copies of any notice by mail given by it pursuant to any provision hereof.
Section 6.10. Financing Statements. (a) The Issuer and the Trustee shall cooperate with the Company in the performance of its obligations under Section 6.06 of the Loan Agreement.
(b) In accordance with Section 6.06 of the Loan Agreement, the Trustee hereby agrees to prepare on behalf of the Company, request that the Company execute (if such execution is required for any such filing) and file in a timely manner (if received from the Company in a timely manner, if execution by the Company is necessary) any and all continuation statements as might be required by law in order to maintain the perfection of the lien of the Indenture and in order to continue the security interests granted or assigned to the Trustee under the Loan Agreement.
(c) Notwithstanding anything to the contrary contained herein, the Trustee shall not be responsible for any initial filings or any financing statements or the information contained therein (including the exhibits thereto), the perfection of any such security interests, or the accuracy or sufficiency of any description of collateral of such filings, and unless the Trustee shall have been notified by the Company that any such initial filing or description of collateral was or has become defective, the Trustee shall be fully protected in relying on such initial filing and descriptions in filing any financing or continuation statement or statements pursuant to this section.
Section 6.11. No Transfer of First Mortgage Bonds. The Trustee shall hold the First Mortgage Bonds for the benefit of the Owners of the Bonds, but subject to the terms and conditions of the Bond Delivery Agreement. The Trustee shall not sell, assign or transfer the First Mortgage Bonds except to a successor trustee under this Indenture. The First Mortgage Bonds may be held by and registered in the name of the Trustee’s nominee without violating the
provisions of the preceding sentence provided that such nominee is under the control of the Trustee and that the ability of the Trustee to perform its obligations hereunder and under the Bond Delivery Agreement will not be adversely affected thereby.
Article VII
Defeasance
Section 7.01. Defeasance. If the Issuer shall pay or cause to be paid to the Owner of any Bond the principal thereof, and premium, if any, and interest due and payable, and thereafter to become due and payable, thereon, or any portion thereof in the principal amount of $5,000 or any integral multiple thereof, such Bond or portion thereof shall cease to be entitled to any lien, benefit or security under this Indenture. If the Issuer shall pay or cause to be paid to the Owners of all the Bonds secured hereby the principal thereof, and premium, if any, and interest due and payable, and thereafter to become due and payable, thereon, and shall pay or cause to be paid all other sums payable hereunder by the Issuer, then, and in that case, the right, title and interest of the Trustee in and to the Trust Estate shall thereupon cease, terminate and become void. In such event, the Trustee, at the direction of the Company, shall assign, transfer and turn over to the Company the Trust Estate, including, without limitation, any surplus in the Bond Fund and any balance remaining in any other fund created under this Indenture.
All or any portion of Outstanding Bonds or portions of Outstanding Bonds in principal amounts of $5,000 or any integral multiple thereof shall be deemed to have been paid within the meaning and with the effect expressed in this Article VII when:
(a) (i) in the case of the provision for payment or redemption of less than all the Bonds then Outstanding, such Bonds or portions thereof shall have been selected in accordance with Section 3.02 hereof and this Section 7.01 and (ii) in the case of a redemption, the Trustee shall have given, or the Company shall have given to the Trustee in form satisfactory to it irrevocable instructions to give, on a date in accordance with the provisions of Section 3.03 hereof, notice of redemption of such Bonds or portions thereof,
(b) there shall have been deposited with the Trustee either:
(i) cash in an amount which shall be sufficient, or
(ii) in the case of a deposit prior to the redemption date or maturity date, as the case may be, of such Bonds or portions thereof, Government Obligations which shall not contain provisions permitting the redemption thereof at the option of the issuer and the principal of and the interest on which, when due, and without any regard to reinvestment thereof, will provide moneys which, together with the moneys, if any, deposited with or held by the Trustee, shall be sufficient, in the opinion of a firm of independent certified public accountants of nationally recognized standing, a verification agent or a similar expert, to pay
when due the principal of, and premium, if any, and interest due and to become due on, such Bonds or portions thereof;
(c) if Government Obligations shall have been deposited with the Trustee, there shall have been delivered to the Trustee an opinion of Bond Counsel to the effect that such deposit will not adversely affect the exclusion of interest on the Bonds from gross income for purposes of federal income taxation and all conditions precedent to the defeasance have been complied with; and
(d) in the event such Bonds or portions thereof do not mature and are not to be redeemed within the next succeeding 60 days, the Company shall have given the Trustee in form satisfactory to it irrevocable instructions to give, as soon as practicable in the same manner as a notice of redemption is given pursuant to Section 3.03 hereof, a notice to the Owners of such Bonds or portions thereof that the deposit required by clause (b) above has been made with the Trustee and that such Bonds or portions thereof are deemed to have been paid in accordance with this Article VII and stating such maturity or redemption date upon which moneys are to be available for the payment of the principal of, and premium, if any, and interest on, such Bonds or portions thereof.
Neither the Government Obligations nor moneys deposited with the Trustee pursuant to this Article VII nor principal or interest payments on any such Government Obligations shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal of, and premium, if any, and interest on, such Bonds or portions thereof; provided, that any cash so deposited or received from such principal or interest payments on such Government Obligations, if not then needed for such purpose, shall, to the extent practicable, be invested in Government Obligations which meet the requirements set forth in clause (b) above and interest earned from such reinvestments shall be paid over to the Company, as received by the Trustee, free and clear of any trust, lien or pledge.
Subject to Section 2.11(c) hereof regarding DTC procedures, if payment of less than all the Bonds is to be provided for in the manner and with the effect provided in this Article VII, the Trustee shall select the Bonds or portions of Bonds for which payment is to be provided in the manner specified by Section 3.02 hereof.
Article VIII
Default and Remedies
Section 8.01. Events of Default. Each of the following events shall constitute and is referred to in this Indenture as an “Event of Default”:
(a) a failure to pay the principal of or premium, if any, on any of the Bonds when the same shall become due and payable at maturity, upon redemption, by declaration or otherwise;
(b) a failure to pay an installment of interest on, any of the Bonds when the same shall become due and payable;
(c) an “Event of Default” under the Loan Agreement;
(d) an occurrence of a “Default” as such term is defined in Section 65 of the Mortgage;
(e) a failure by the Issuer to observe and perform any covenant, condition, agreement or provision (other than as specified in clauses (a) and (b) of this Section 8.01) contained in the Bonds or in this Indenture on the part of the Issuer to be observed or performed, which failure shall continue for a period of ninety (90) days after written notice, specifying such failure and requesting that it be remedied and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Issuer and the Company by the Trustee, which may give such notice in its discretion and shall give such notice at the written request of the Owners of not less than 25% in aggregate principal amount of the Bonds then Outstanding, unless the Trustee, or, if such notice shall have been given at the written request of the Owners of not less than 25% in aggregate principal amount of the Bonds then Outstanding, the Trustee and the Owners of a principal amount of Bonds not less than the principal amount of Bonds the Owners of which requested such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; provided, however, that the Trustee, or the Trustee and the Owners of such principal amount of Bonds, as the case may be, shall be deemed to have agreed to an extension of such period if corrective action is initiated by the Issuer, or the Company on behalf of the Issuer, within such period and is being diligently pursued.
Upon the occurrence and continuance of an Event of Default under the Indenture, the Trustee (a) may or (b) shall, upon the written request of the Owners of not less than 25% in aggregate principal amount of Bonds then Outstanding, by notice in writing delivered to the Company with a copy of such notice being sent to the Issuer, declare the principal of all Bonds then Outstanding and the interest accrued thereon immediately due and payable, whereupon such principal and interest shall become and be immediately due and payable. Upon any such declaration of acceleration hereunder, the Trustee shall, subject to the terms of this Indenture, immediately exercise such rights as it may have as owner of the First Mortgage Bonds and under the Loan Agreement.
Any waiver of any “Default” under the Mortgage and a rescission and annulment of its consequences, including an acceleration of the bonds outstanding thereunder, shall constitute a waiver of the corresponding Event or Events of Default under this Indenture and a rescission and annulment of its consequences, including an acceleration of the Bonds and, in the event that an acceleration of the Bonds shall have been rescinded and annulled, the Trustee shall promptly give written notice of such rescission or annulment to the Issuer and the Company and shall give notice thereof by mail to all Owners of Outstanding Bonds; but no such waiver, rescission and annulment shall extend to or affect any subsequent Event of Default or impair any right or remedy consequent thereon.
Section 8.02. Remedies. Upon the occurrence and continuance of any Event of Default, then and in every such case the Trustee, (x) may or (y) shall, upon the written request of the Owners of not less than 25% in aggregate principal amount of the Bonds then Outstanding and receipt of indemnity to its satisfaction, by notice in writing delivered to the Company with a copy of such notice being sent to the Issuer, in its own name and as the Trustee of an express trust:
(i) by mandamus, or other suit, action or proceeding at law or in equity, enforce all rights of the Owners of the Bonds, and require the Issuer or the Company to carry out any agreements with or for the benefit of the Owners of the Bonds and to perform its or their duties under the Act, the Loan Agreement, the Bond Delivery Agreement and this Indenture;
(ii) bring suit upon the Bonds or the First Mortgage Bonds; or
(iii) by action or suit in equity enjoin any acts or things which may be unlawful or in violation of the rights of the Owners of the Bonds.
Section 8.03. Restoration to Former Position. (a) If, at any time after acceleration of the Bonds as provided in Section 8.01 any overdue installments of interest upon the Bonds, together with the reasonable and proper charges, expenses and liabilities of the Trustee, and all other sums then payable by the Issuer under the Indenture (except the principal of, and interest accrued since the next preceding Interest Payment Date on, the Bonds due and payable solely by virtue of such acceleration) shall either be paid by the Issuer or provision satisfactory to the Trustee shall be made for such payment, and all defaults under the Bonds or under the Indenture (other than the payment of principal and interest due and payable solely by reason of such acceleration) shall be made good or be secured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall be made therefor, then any such acceleration shall ipso facto be deemed to be rescinded and any such default and its consequences shall ipso facto be deemed to be annulled, but no such rescission and annulment shall extend to or affect any subsequent default or impair or exhaust any right or power consequent thereon.
(b) In the event that any proceeding taken by the Trustee to enforce any right under this Indenture shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then the Issuer, the Trustee and the Owners of the Bonds shall be restored to their former positions and rights hereunder, respectively, and all rights, remedies and powers of the Trustee shall continue as though no such proceeding had been taken.
Section 8.04. Owners’ Right to Direct Proceedings. Anything in this Indenture to the contrary notwithstanding, the Owners of a majority in principal amount of the Bonds then Outstanding hereunder shall have the right, by an instrument in writing executed and delivered to the Trustee, to direct the time, method and place of conducting all remedial proceedings available to the Trustee under this Indenture or exercising any trust or power conferred on the Trustee by this Indenture; provided the Trustee shall have received security or indemnity to its satisfaction; and provided further, that:
(a) such direction shall not be in conflict with any rule of law or with this Indenture;
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c) the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by an officer or officers of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability.
Section 8.05. Limitation on Owners’ Right to Institute Proceedings. No Owner of Bonds shall have any right to institute any suit, action or proceedings in equity or at law for the execution of any trust or power hereunder, or any other remedy hereunder or on said Bonds, unless such Owner previously shall have given to the Trustee written notice of an Event of Default as hereinabove provided and unless the Owners of not less than 25% in aggregate principal amount of the Bonds then Outstanding shall have made written request of the Trustee so to institute such suit, action or proceeding after the right to institute said suit, action or proceeding shall have accrued, and shall have afforded the Trustee a reasonable opportunity to proceed to institute the same in either its or their name, and unless there also shall have been furnished to the Trustee security and indemnity satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee shall not have complied with such request within 60 days’ time; and such notification, request and furnishing of indemnity are hereby declared in every such case, at the option of the Trustee, to be conditions precedent to the institution of said suit, action or proceeding; it being understood and intended that no one or more of the Owners of the Bonds shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the security of this Indenture, or to enforce any right hereunder or under the Bonds, except in the manner herein provided, and that all suits, actions and proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Owners of the Bonds.
Section 8.06. No Impairment of Right to Enforce Payment. Notwithstanding any other provision in this Indenture, the right of any Owner of a Bond to receive payment of the principal of, and premium, if any, and interest on, such Bond, on or after the respective due dates expressed or redemption dates provided for therein, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Owner.
Section 8.07. Proceedings by Trustee without Possession of Bonds. All rights of action under this Indenture or under any of the Bonds which are enforceable by the Trustee may be enforced by it without the possession of any of the Bonds or the production thereof at the trial or other proceedings relative thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the equal and ratable benefit of the Owners of the Bonds, subject to the provisions of this Indenture.
Section 8.08. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Trustee or to the Owners of the Bonds is intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or under the Loan Agreement, or now or hereafter existing at law or in equity or by statute.
Section 8.09. No Waiver of Remedies. No delay or omission of the Trustee or of any Owner of a Bond to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default, or an acquiescence therein; and every power and remedy given by this Article VIII to the Trustee and to the Owners of the Bonds, respectively, may be exercised from time to time and as often as may be deemed expedient.
Section 8.10. Application of Moneys. Any moneys received by the Trustee, by any receiver or by any Owner of a Bond pursuant to any right given or action taken under the provisions of this Article VIII, after payment of the costs and expenses of the proceedings resulting in the collection of such moneys and of the expenses, liabilities and advances incurred or made by the Trustee and any other amounts owing to the Trustee under Section 9.04 hereof, shall be deposited in the Bond Fund and all moneys so deposited in the Bond Fund during the continuance of an Event of Default (other than moneys for the payment of Bonds which had matured or otherwise become payable prior to such Event of Default or for the payment of interest due prior to such Event of Default) shall be applied as follows:
(a) Unless the principal of all the Bonds shall have been declared due and payable, all such moneys shall be applied (i) first, to the payment to the Persons entitled thereto of all installments of interest then due on the Bonds, in the order of maturity of the installments of such interest and, if the amount available shall not be sufficient to pay in full any particular installment of interest, then to the payment ratably, according to the amounts due on such installment, and (ii) second, to the payment to the Persons entitled thereto of the unpaid principal of and premium, if any, on any of the Bonds which shall have become due (other than Bonds called for redemption for the payment of which money is held pursuant to the provisions of this Indenture), in the order of their due dates, with interest on such Bonds at their respective rates from the respective dates upon which they became due and, if the amount available shall not be sufficient to pay in full Bonds due on any particular date, together with such interest, then to the payment ratably, according to the amount of principal and premium, if any, and interest due on such date, in each case to the Persons entitled thereto, without any discrimination or privilege.
(b) If the principal of all the Bonds shall have been declared due and payable, all such moneys shall be applied to the payment of the principal and interest then due and unpaid upon the Bonds, without preference or priority of principal over interest or of interest over principal, or of any installment of interest over any other installment of interest, or of any Bond over any other Bond, ratably, according to the amounts due respectively for principal and interest, to the Persons entitled thereto without any discrimination or privilege.
(c) If the principal of all the Bonds shall have been declared due and payable, and if acceleration of the maturity of the Bonds by reason of such Event of Default shall
thereafter have been rescinded or annulled under the provisions of this Article VIII, subject to the provisions of clause (b) of this Section 8.10 which shall be applicable in the event that the principal of all the Bonds shall later become due and payable, the moneys shall be applied in accordance with the provisions of clause (a) of this Section 8.10.
Whenever moneys are to be applied pursuant to the provisions of this Section 8.10, such moneys shall be applied at such times, and from time to time, as the Trustee shall determine, having due regard to the amount of such moneys available for application and the likelihood of additional moneys becoming available for such application in the future. Whenever the Trustee shall apply such moneys, it shall fix the date (which shall be an Interest Payment Date unless it shall deem another date more suitable) upon which such application is to be made and upon such date interest on the amounts of principal, premium and interest to be paid on such dates shall cease to accrue. The Trustee shall give notice of the deposit with it of any such moneys and of the fixing of any such date by mail to all Owners of Outstanding Bonds, and, subject to Section 2.11 hereof, shall not be required to make payment to any Owner of a Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid.
Section 8.11. Severability of Remedies. It is the purpose and intention of this Article VIII to provide rights and remedies to the Trustee and the Owners of the Bonds which may be lawfully granted under the provisions of the Act, but should any right or remedy herein granted be held to be unlawful, the Trustee and the Owners of the Bonds shall be entitled, as above set forth, to every other right and remedy provided in this Indenture and by law.
Article IX
Trustee; Paying Agent; Registrar
Section 9.01. Acceptance of Trusts. The Trustee hereby accepts and agrees to execute the trusts hereby created, but only upon the additional terms set forth in this Article IX, to all of which the Issuer agrees and the respective Owners of the Bonds agree by their acceptance of delivery of any of the Bonds.
Section 9.02. No Responsibility for Recitals. The recitals, statements and representations contained in this Indenture or in the Bonds, save only the Trustee’s certificate of authentication upon the Bonds, shall not be taken and construed as made by or on the part of the Trustee, and the Trustee does not assume, and shall not have, any responsibility or obligation for the correctness of any thereof or for the validity or sufficiency of this Indenture, the Loan Agreement, the Bond Delivery Agreement or the First Mortgage Bonds, or the perfection or the maintenance of the perfection of any security interest granted hereby or for the validity or the priority of the lien of the Mortgage.
Section 9.03. Limitations on Liability. The Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, receivers or employees, and shall be entitled to advice of counsel concerning all matters of trust and its duty hereunder, and the Trustee shall not be answerable for the default or misconduct of any such attorney, agent, receiver or employee selected by it with reasonable care and the advice
of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted hereunder in good faith and reliance thereon. The Trustee shall not be answerable for the exercise of any discretion or power under this Indenture or for anything whatsoever in connection with the trust created hereby, except only for its own negligence or willful misconduct.
Section 9.04. Compensation, Expenses and Advances. The Trustee, the Paying Agent and the Registrar under this Indenture shall be entitled to reasonable compensation for their services rendered hereunder (not limited by any provision of law in regard to the compensation of the trustee of an express trust) and to reimbursement for their actual out-of-pocket expenses (including counsel fees) reasonably incurred in connection therewith, except as a result of their negligence or willful misconduct. If the Issuer shall fail to perform any of the covenants or agreements contained in this Indenture, other than the covenants or agreements in respect of the payment of the principal of, and premium, if any, and interest on, the Bonds, the Trustee may, in its discretion and without notice to the Owners of the Bonds, at any time and from time to time, make advances to effect performance of the same on behalf of the Issuer, but the Trustee shall be under no obligation so to do; and any and all such advances may bear interest at a rate per annum equal to the prime lending rate of the Trustee then in effect; but no such advance shall operate to relieve the Issuer from any default hereunder. In Section 5.03 of the Loan Agreement, the Company has agreed that it will pay to the Trustee, the Paying Agent and the Registrar such compensation and reimbursement of expenses and advances, but the Company may, without creating a default hereunder, contest in good faith the reasonableness of any such services, expenses and advances. In Section 5.04 of the Loan Agreement the Company has agreed to indemnify the Trustee to the extent stated therein. If the Company shall have failed to make any payment due to the Trustee under Section 5.03 or 5.04 of the Loan Agreement, the Trustee shall have, in addition to any other rights hereunder, a claim, prior to the claim of the Owners of the Bonds, for the payment of its compensation and the reimbursement of its expenses and any advances made by it and for payment of its indemnities, as provided in this Section 9.04, upon the moneys and obligations in the Bond Fund, except for moneys or obligations deposited with or paid to the Trustee for the redemption or payment of Bonds which are deemed to have been paid in accordance with Article VII hereof and funds held pursuant to Section 4.06 hereof.
Section 9.05. Notice of Events of Default, Etc. The Trustee shall not be required to take notice, or be deemed to have notice, (a) of any default or Event of Default under this Indenture other than an Event of Default under clause (a) or (b) of the first paragraph of Section 8.01 hereof or (b) of any declaration of acceleration of the First Mortgage Bonds, any waiver of any “Default” under the Mortgage or any rescission or annulment of its consequences, unless specifically notified in writing of such default, Event of Default, Default, declaration, waiver, rescission or annulment by the Company, the Mortgage Trustee or the Owners of at least 25% in aggregate principal amount of the Bonds then Outstanding. The Trustee may, however, at any time, in its discretion, require of the Issuer full information and advice as to the performance of any of the covenants, conditions and agreements contained herein.
Section 9.06. Action by Trustee. The Trustee shall be under no obligation to take any action in respect of any default or Event of Default hereunder or toward the execution or enforcement of any of the trusts hereby created, or to institute, appear in or defend any suit or
other proceeding in connection therewith, unless requested in writing so to do by the Owners of at least 25% in aggregate principal amount of the Bonds then Outstanding and, if in its opinion such action may tend to involve it in expense or liability, unless furnished, from time to time as often as it may require, with security and indemnity satisfactory to it; but the foregoing provisions are intended only for the protection of the Trustee, and shall not affect any discretion or power given by any provisions of this Indenture to the Trustee to take action in respect of any default or Event of Default without such notice or request from the Owners of the Bonds, or without such security or indemnity. No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Section 9.07. Good Faith Reliance. The Trustee shall be protected and shall incur no liability in acting or proceeding in good faith upon any resolution, notice, telegram, telex or facsimile transmission, request, consent, waiver, certificate, statement, affidavit, voucher, bond, requisition or other paper or document, or upon telephonic instructions to the extent the giving of telephonic instructions is specifically authorized by this Indenture, in any case which the Trustee shall in good faith believe to be genuine and to have been passed, signed or given by the proper board, body or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture, the Loan Agreement, the Bond Delivery Agreement or the Mortgage, or upon the written opinion of any attorney, engineer, accountant or other expert believed by the Trustee to be qualified in relation to the subject matter, and the Trustee shall be under no duty to make any investigation or inquiry as to any statements or opinions contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements or opinions. Neither the Trustee nor the Paying Agent shall be bound to recognize any Person as an Owner of a Bond or to take any action at his request unless his Bond shall be deposited with such entity or satisfactory evidence of the ownership of such Bond shall be furnished to such entity.
The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Owners of a majority in principal amount of the Outstanding Bonds, given pursuant to Section 8.04, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. Any request or direction of the Company mentioned herein shall be sufficiently evidenced by a certificate of an Authorized Company Representative. Whenever in the administration of this Indenture, the Loan Agreement or the Bond Delivery Agreement the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder or thereunder, the Trustee (unless other evidence be herein or therein specifically prescribed) may, in the absence of bad faith on its part, rely upon a certificate of an Authorized Company Representative.
Section 9.08. Dealings in Bonds and with the Issuer and the Company. The Trustee, the Paying Agent or the Registrar in its individual capacity, may in good faith buy, sell, own, hold and deal in any of the Bonds, or any first mortgage bonds issued under the Mortgage, and may
join in any action which any Owner of a Bond may be entitled to take with like effect as if it did not act in any capacity hereunder. The Trustee, the Paying Agent or the Registrar, in its individual capacity, either as principal, agent or trustee, may also engage in or be interested in any financial or other transaction with the Issuer or the Company, and may act as depositary, trustee, or agent for any committee or body of Owners of the Bonds or other obligations of the Issuer or the Company as freely as if it did not act in any capacity hereunder.
Section 9.09. Construction of Indenture. The Trustee may construe any of the provisions of this Indenture insofar as the same may appear to be ambiguous or inconsistent with any other provision hereof, and any construction of any such provisions hereof by the Trustee in good faith shall be binding upon the Owners of the Bonds.
Section 9.10. Resignation of Trustee. The Trustee may resign and be discharged of the trusts created by this Indenture by executing any instrument in writing resigning such trust and specifying the date when such resignation shall take effect, and filing the same with the Issuer and the Company, not less than 60 days before the date specified in such instrument when such resignation shall take effect, and by giving notice of such resignation by mail, not less than 30 days prior to such resignation date, to all Owners of Bonds. Such resignation shall take effect on the day specified in such instrument and notice, unless previously a successor Trustee shall have been appointed as hereinafter provided, in which event such resignation shall take effect immediately upon the appointment of such successor Trustee, but in no event shall a resignation take effect earlier than the date on which a successor Trustee has been appointed.
Section 9.11. Removal of Trustee. The Trustee may be removed at any time by filing with the Trustee so removed, and with the Issuer, the Company (in the case of clause (i) hereof) and the Registrar, an instrument or instruments in writing executed by (i) the Owners of not less than a majority in principal amount of the Bonds then Outstanding or (ii) the Company, as long as no event of default under the Loan Agreement shall have occurred and be continuing. Such instrument or instruments shall also either (x) appoint a successor or (y) in the case of clause (i) hereof, consent to the appointment by the Company of a successor and be accompanied by an instrument of appointment by the Company of such successor. In no event shall a removal take effect earlier than the date on which a successor Trustee has been appointed and has accepted its appointment.
Section 9.12. Appointment of Successor Trustee. In case at any time the Trustee shall be removed, or be dissolved, or if its property or affairs shall be taken under the control of any state or federal court or administrative body because of insolvency or bankruptcy, or for any other reason, then a vacancy shall forthwith and ipso facto exist in the office of Trustee and a successor may be appointed, and in case at any time the Trustee shall resign, then a successor may be appointed by filing with the Issuer and the Company (in the case of clause (a) hereof) an instrument in writing executed by (a) the Owners of not less than a majority in principal amount of Bonds then Outstanding or (b) the Company, as long as no event of default under the Loan Agreement shall have occurred and be continuing. Copies of such instrument shall be promptly delivered by the Issuer or the Company, as applicable, to the predecessor Trustee and to the Trustee so appointed.
After any appointment by the Company, it shall cause notice of such appointment to be given by mail to all Owners of Bonds. Any new Trustee appointed by the Company shall immediately and without further act be superseded by a Trustee appointed by the Owners of the Bonds in the manner above provided.
Section 9.13. Qualifications of Trustee. Every Trustee (a) shall be a bank or trust company duly organized and in good standing under the laws of the United States or any state or territory thereof, authorized by law to perform all the duties imposed upon it by this Indenture and subject to examination by a federal or state authority, (b) shall have a combined capital stock, surplus and retained earnings of at least $75,000,000 and (c) shall be permitted under the Act to perform the duties of a Trustee, if there can be located, with reasonable effort, such an institution willing and able to accept the trust on reasonable and customary terms.
Section 9.14. Judicial Appointment of Successor Trustee. In case at any time the Trustee shall have given notice of its resignation and no appointment of a successor Trustee shall be made pursuant to the foregoing provisions of this Article IX prior to the date specified in the notice of resignation as the date when such resignation is to take effect, the retiring Trustee may forthwith apply to a court of competent jurisdiction for the appointment of a successor Trustee; provided, that the Company shall pay or reimburse the Trustee for all associated expenses of such application. If no appointment of a successor Trustee shall be made pursuant to the foregoing provisions of this Article IX within six months a vacancy shall have occurred in the office of Trustee pursuant to Section 9.12 hereof or after the giving by the Trustee of its notice of resignation, any Owner of a Bond may apply to any court of competent jurisdiction to appoint a successor Trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor Trustee.
Section 9.15. Acceptance of Trusts by Successor Trustee. Any successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer an instrument accepting such appointment hereunder, and thereupon such successor Trustee, without any further act, deed or conveyance, shall become duly vested with all the estates, property, rights, powers, trusts, duties and obligations of its predecessor in the trust hereunder, with like effect as if originally named Trustee herein. Upon request of such Trustee, such predecessor Trustee and the Issuer shall execute and deliver an instrument transferring to such successor Trustee all the estates, property, rights, powers and trusts hereunder of such predecessor Trustee and subject to the provisions of Section 9.04 hereof and to the prior claim provided for therein, such predecessor Trustee shall pay over to the successor Trustee all moneys and other assets at the time held by it hereunder.
Section 9.16. Successor by Merger or Consolidation. Any corporation into which any Trustee hereunder may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Trustee hereunder shall be a party or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor Trustee under this Indenture, without the execution or filing of any paper or any further act on the part of the parties hereto, anything in this Indenture to the contrary notwithstanding.
Section 9.17. Standard of Care. Notwithstanding any other provisions of this Article IX, the Trustee shall, during the existence of an Event of Default of which the Trustee by Section 9.05 hereof is required to take notice and is deemed to have notice or any other Event of Default of which the Trustee has been specifically notified in accordance with Section 9.05 hereof, exercise such of the rights and powers vested in it by this Indenture and use the same degree of skill and care in their exercise as a prudent person would use and exercise under the circumstances in the conduct of his own affairs. Except during the existence of such Event of Default, the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee. The Trustee shall not be liable for any error of judgment made in good faith by an officer thereof, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
Section 9.18. Notice of Event of Default. If any default or Event of Default under this Indenture occurs of which the Trustee by Section 9.05 hereof is required to take notice and deemed to have notice, or any other default or Event of Default under this Indenture occurs of which the Trustee has been specifically notified in accordance with Section 9.05 hereof, and any such default or Event of Default under this Indenture shall continue for at least thirty (30) Business Days after the Trustee acquires or is deemed to have such notice thereof, the Trustee shall promptly give notice thereof by mail to all Owners of Outstanding Bonds.
Section 9.19. Intervention in Litigation of the Issuer. In any judicial proceeding to which the Issuer is a party and which in the opinion of the Trustee and its counsel has a substantial bearing on the interests of the Owners of the Bonds, the Trustee may intervene on behalf of the Owners of the Bonds and shall, upon receipt of indemnity satisfactory to it, do so if requested in writing by Owners of at least 25% in aggregate principal amount of the Bonds then Outstanding if permitted by the court having jurisdiction in the premises.
Section 9.20. Paying Agent. The Trustee shall be the initial Paying Agent. The Company may appoint any other Paying Agent for the Bonds, subject to the conditions set forth in Section 9.21 hereof. The Paying Agent (if other than the Trustee) shall designate to the Issuer, the Trustee and the Company its Principal Office and signify its acceptance of the duties and obligations imposed upon it hereunder by a written instrument of acceptance delivered to the Issuer, the Trustee and the Company under which the Paying Agent will agree, particularly:
(a) to hold all sums held by it for the payment of the principal of, premium, if any, or interest on, the Bonds in trust for the benefit of the Owners of the Bonds until such sums shall be paid to such Owners of the Bonds or otherwise disposed of as herein provided;
(b) to keep such books and records as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Issuer, the Trustee and the Company at all reasonable times; and
(c) at any time during the continuance of any default under Section 8.01(a) or (b) hereof, upon the written request of the Trustee to forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Issuer shall cooperate with the Trustee and the Company to cause the necessary arrangements to be made and to be thereafter continued whereby funds derived from the sources specified in Section 4.03 hereof will be made available for the payment when due of the Bonds as presented at the Principal Office of the Paying Agent.
Section 9.21. Qualifications of Paying Agent; Resignation; Removal. The Paying Agent shall be a corporation duly organized under the laws of the United States of America or any state or territory thereof, having a combined capital stock, surplus and undivided profits of at least $15,000,000 and authorized by law to perform all the duties imposed upon it by this Indenture. The Paying Agent may at any time resign and be discharged of the duties and obligations created by this Indenture by giving at least 60 days’ notice to the Issuer, the Company and the Trustee. The Paying Agent may be removed at any time at the direction of the Company by an instrument, signed by an Authorized Company Representative, filed with the Paying Agent and the Trustee.
In the event of the resignation or removal of the Paying Agent, the Paying Agent shall pay over, assign and deliver any moneys held by it in such capacity to its successor or, if there be no successor, to the Trustee.
In the event that the Company shall fail to appoint a Paying Agent hereunder, or in the event that the Paying Agent shall resign or be removed, or be dissolved, or if the property or affairs of the Paying Agent shall be taken under the control of any state or federal court or administrative body because of bankruptcy or insolvency, or for any other reason, and the Company shall not have appointed its successor as Paying Agent, the Trustee shall ipso facto be deemed to be the Paying Agent for all purposes of this Indenture until the appointment by the Company of the Paying Agent or successor Paying Agent, as the case may be.
Section 9.22. Registrar. The Trustee shall be the initial Registrar. The Company shall appoint any other Registrar for the Bonds, subject to the conditions set forth in Section 9.23 hereof. The Registrar (if other than the Trustee) shall designate to the Issuer and the Trustee its Principal Office and signify its acceptance of the duties imposed upon it hereunder by a written instrument of acceptance delivered to the Issuer, the Trustee and the Company under which such Registrar will agree, particularly, to keep such books and records as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Issuer, the Trustee and the Company at all reasonable times.
The Issuer shall cooperate with the Trustee and the Company to cause the necessary arrangements to be made and to be thereafter continued whereby Bonds, executed by the Issuer and authenticated by the Trustee, shall be made available for exchange and registration of transfer at the Principal Office of the Registrar.
Section 9.23. Qualifications of Registrar; Resignation; Removal. The Registrar shall be a corporation duly organized under the laws of the United States of America or any state or territory thereof, having a combined capital stock, surplus and undivided profits of at least $15,000,000 and authorized by law to perform all the duties imposed upon it by this Indenture. The Registrar may at any time resign and be discharged of the duties and obligations created by this Indenture by giving at least 60 days’ notice to the Issuer, the Trustee and the Company. The Registrar may be removed at any time, at the direction of the Company, by an instrument, signed by an Authorized Company Representative, filed with the Registrar and the Trustee.
In the event of the resignation or removal of the Registrar, the Registrar shall deliver any Bonds held by it in such capacity to its successor or, if there be no successor, to the Trustee.
In the event that the Company shall fail to appoint a Registrar hereunder, or in the event that the Registrar shall resign or be removed, or be dissolved, or if the property or affairs of the Registrar shall be taken under the control of any state or federal court or administrative body because of bankruptcy or insolvency, or for any other reason, and the Company shall not have appointed its successor as Registrar, the Trustee shall ipso facto be deemed to be the Registrar for all purposes of this Indenture until the appointment by the Company of the Registrar or successor Registrar, as the case may be.
Section 9.24. Several Capacities. Anything in this Indenture to the contrary notwithstanding, the same entity may serve hereunder as the Trustee, the Paying Agent and the Registrar and in any other combination of such capacities, to the extent permitted by law.
Section 9.25. Appointment of Co-Trustee. It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction (including particularly the law of Montana) denying or restricting the right of banking corporations or associations to transact business as trustee in such jurisdiction. It is recognized that in case of litigation under this Indenture, the Loan Agreement, the Bond Delivery Agreement or the Mortgage, and in particular in the case of the enforcement thereof on default, or in the case the Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Trustee or hold title to the properties, in trust, as herein granted, or take any action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an additional individual or institution as a separate or co-trustee. The following provisions of this Section 9.25 are adapted to these ends.
In the event that the Trustee shall appoint an additional individual or institution as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate or co-trustee, but only to the extent necessary to enable such separate or co-trustee to exercise such remedies, powers and rights, and every covenant and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be enforceable by either of them.
Should any instrument in writing from the Issuer be required by the separate or co-trustee so appointed by the Trustee for more fully and certainly vesting in and confirming to him or it
such estates, property, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Issuer. In case any separate or co-trustee or a successor to either shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a successor to such separate or co-trustee or a new separate or co-trustee.
Article X
Execution of Instruments by Owners and
Proof of Ownership of Bonds
Section 10.01. Execution of Instruments; Proof of Ownership. Any request, direction, consent or other instrument in writing, whether or not required or permitted by this Indenture to be signed or executed by Owners of Bonds, may be in any number of concurrent instruments of similar tenor and may be signed or executed by Owners of Bonds in person or by agent appointed by an instrument in writing. Proof of the execution of any such instrument and of the ownership or former ownership of Bonds shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the Trustee with regard to any action taken by it under such instrument if made in the following manner:
(a) the fact and date of the execution by any person of any such instrument may be proved by the certificate of any officer in any jurisdiction who, by the laws thereof, has power to take acknowledgments within such jurisdiction, to the effect that the person signing such instrument acknowledged before him the execution thereof, or by an affidavit of a witness to such execution, or in any other manner reasonably acceptable to the Trustee; or
(b) the ownership or former ownership of Bonds shall be proved by the registration books kept under the provisions of Section 2.07 hereof.
Nothing contained in this Article X shall be construed as limiting the Trustee to such proof, it being intended that the Trustee may accept any other evidence of matters herein stated which it may deem sufficient. Any request or consent of any Owner of a Bond shall bind every future Owner of any Bond or Bonds issued in lieu thereof or on registration of transfer thereof in respect of anything done by the Trustee or the Issuer in pursuance of such request or consent.
Article XI
Modification of This Indenture
and the Loan Agreement
Section 11.01. Limitations. Neither this Indenture nor the Loan Agreement shall be modified or amended in any respect subsequent to the first issuance of the Bonds except as provided in and in accordance with and subject to the provisions of this Article XI and
Section 6.04 hereof. The Trustee shall not be obligated to enter into or consent to any supplemental indenture or any modification, alteration, amendment or supplement to the Loan Agreement which affects the rights, duties, liabilities or immunities of the Trustee hereunder.
Section 11.02. Supplemental Indentures without Consent of Owners. The Issuer may, and the Trustee shall, from time to time and at any time, without the consent of or notice to the Owners of the Bonds, enter into supplemental indentures as follows:
(a) to cure any formal defect, omission, inconsistency or ambiguity in this Indenture;
(b) to grant to or confer or impose upon the Trustee for the benefit of the Owners of the Bonds any additional rights, remedies, powers, authority, security, liabilities or duties which may lawfully be granted, conferred or imposed and which are not contrary to or inconsistent with this Indenture as theretofore in effect;
(c) to add to the covenants and agreements of, and limitations and restrictions upon, the Issuer in this Indenture other covenants, agreements, limitations and restrictions to be observed by the Issuer which are not contrary to or inconsistent with this Indenture as theretofore in effect;
(d) to confirm, as further assurance, any pledge under, and the subjection to any claim, lien or pledge created or to be created by, this Indenture, of the Receipts and Revenues of the Issuer from the Loan Agreement or of any other moneys, securities or funds;
(e) to authorize a different denomination or denominations of the Bonds and to make correlative amendments and modifications to this Indenture regarding exchangeability of Bonds of different denominations, redemptions of portions of Bonds of particular denominations and similar amendments and modifications of a technical nature;
(f) to modify, alter, supplement or amend this Indenture in such manner as shall permit the qualification hereof under the Trust Indenture Act of 1939, as from time to time amended;
(g) to effect changes in the Indenture so as to secure or maintain ratings from nationally recognized statistical rating organization, which changes will not restrict, limit or reduce the obligation of the Issuer to pay the principal of, and premium, if any, and interest on, the Bonds as provided in this Indenture or otherwise adversely affect the Owners under this Indenture;
(h) to modify, alter, amend or supplement this Indenture in any other respect which is not materially adverse to the Owners of the Bonds and which does not involve a change described in clause (i), (ii), (iii) or (iv) of Section 11.03(a) hereof; or
(i) to modify, alter, amend or supplement this Indenture in any respect which does not result in a reduction in the then-current rating on the Bonds from any rating agency that, at the time, has a rating on the Bonds.
Before the Issuer and the Trustee shall enter into any supplemental indenture pursuant to this Section 11.02, there shall have been delivered to the Trustee an opinion of Bond Counsel stating that such supplemental indenture is authorized or permitted by this Indenture and the Act, complies with their respective terms, will, upon the execution and delivery thereof, be valid and binding upon the Issuer in accordance with its terms and will not adversely affect the exemption from federal income taxation of interest on the Bonds.
Section 11.03. Supplemental Indentures with Consent of Owners. (a) Except for any supplemental indenture permitted to be entered into pursuant to Section 11.02 hereof without the consent of the Owners of the Bonds, subject to the terms and provisions contained in this Section 11.03, the Owners of not less than a majority in aggregate principal amount of the Bonds then Outstanding, which would be adversely affected thereby, shall have the right from time to time to consent to and approve the execution and delivery by the Issuer and the Trustee of any supplemental indenture deemed necessary or desirable by the Issuer or the Trustee for the purposes of modifying, altering, amending, supplementing or rescinding, in any particular, any of the terms or provisions contained in this Indenture; provided, however, that, unless approved in writing by the Owners of all the Bonds then Outstanding which would be adversely affected thereby, nothing herein contained shall permit, or be construed as permitting, (i) a change in the times or currency of payment of the principal of, or premium, if any, or interest on, any Outstanding Bond or a reduction in the principal amount or redemption price of, or rate of interest on, any Outstanding Bond, or (ii) the creation of a claim or lien upon, or a pledge of, the Receipts and Revenues of the Issuer from the Loan Agreement and other moneys pledged to secure the Bonds ranking prior to or on a parity with the claim, lien or pledge created by this Indenture, or (iii) a preference or priority of any Bond or Bonds over any other Bond or Bonds, or (iv) a reduction in the aggregate principal amount of Bonds the consent of the Owners of which is required for any such supplemental indenture or which is required, under Section 11.07 hereof, for any modification, alteration, amendment, or supplement to the Loan Agreement.
(b) If at any time the Issuer shall request the Trustee to enter into any supplemental indenture for any of the purposes of this Section 11.03, the Trustee shall cause notice of the proposed supplemental indenture to be given by mail to all Owners of Outstanding Bonds. Such notice shall briefly set forth the nature of the proposed supplemental indenture and shall state that a copy thereof is on file at the Principal Office of the Trustee for inspection by all Owners of Bonds.
(c) Within two years after the date of the mailing of such notice, the Issuer and the Trustee may enter into such supplemental indenture in substantially the form described in such notice only if there shall have first been delivered to the Trustee (i) the required consents, in writing, of the Owners of the Bonds and (ii) an opinion of Bond Counsel stating that such supplemental indenture is authorized or permitted by this Indenture and the Act, complies with their respective terms and, upon the execution and delivery thereof, will be valid and binding
upon the Issuer in accordance with its terms and will not adversely affect the exemption from federal income taxation of interest on the Bonds.
(d) If Owners of not less than the percentage of Bonds required by this Section 11.03 shall have consented to and approved the execution and delivery thereof as herein provided, no Owner of the Bonds shall have any right to object to the execution and delivery of such supplemental indenture, or to object to any of the terms and provisions contained therein or the operation thereof, or in any manner to question the propriety of the execution and delivery thereof, or to enjoin or restrain the Issuer or the Trustee from executing and delivering the same or from taking any action pursuant to the provisions thereof.
(e) Subject to the terms and provisions contained in Section 11.01 hereof and in this subsection (e) of Section 11.03, the Owners of all the Bonds at any time Outstanding shall have the right, and the Issuer and the Trustee by their execution and delivery of this Indenture hereby expressly confer upon such Owners the right, to modify, alter, amend or supplement this Indenture in any respect, including without limitation in respect of the matters described in clauses (i), (ii), (iii) and (iv) of the proviso contained in subsection (a) of this Section 11.03, by delivering to the Issuer, the Trustee and the Company a written instrument or instruments, executed by or on behalf of such Owners, containing a form of supplemental indenture which sets forth such modification, alterations, amendments and supplements, and, upon the expiration of a sixty (60) day period commencing on the date of such delivery during which no notice of objection shall have been delivered by the Issuer, the Trustee or the Company to such Owners at an address specified in such written instrument, such supplemental indenture shall be deemed to have been approved and confirmed by the Issuer and the Trustee, to the same extent as if actually executed and delivered by the Issuer and the Trustee, and to have been approved in writing by the Company, and such supplemental indenture shall thereupon become and be for all purposes in full force and effect without further action by the Issuer, the Trustee or the Company. The foregoing provisions are, however, subject to the following conditions:
(i) no such supplemental indenture shall in any way affect the limited nature of the obligations of the Issuer under this Indenture as set forth in Sections 2.04 and 6.01 hereof or shall adversely affect any of the rights of the Issuer or the Trustee hereunder without the written consent of the Issuer or the Trustee, as applicable;
(ii) no such supplemental indenture shall be to the prejudice of the Paying Agent or the Registrar; and
(iii) there shall have been delivered to the Issuer, the Trustee and the Company an opinion of Bond Counsel stating that such supplemental indenture is authorized or permitted by this Indenture and the Act, complies with their respective terms, will, upon the expiration of the aforesaid sixty (60) day period, be valid and binding upon the Issuer in accordance with its terms and will not adversely affect the exemption from federal income taxation of interest on the Bonds.
Section 11.04. Effect of Supplemental Indenture. Upon the execution and delivery of any supplemental indenture pursuant to the provisions of this Article XI, this Indenture shall be, and
be deemed to be, modified and amended in accordance therewith, and the respective rights, duties and obligations under this Indenture of the Issuer, the Trustee and all Owners of Bonds then Outstanding shall thereafter be determined, exercised and enforced under this Indenture subject in all respects to such modifications and amendments.
Section 11.05. Consent of the Company. Anything herein to the contrary notwithstanding, no supplemental indenture shall become effective unless and until the Company shall have or shall be deemed to have consented thereto in writing.
Section 11.06. Amendment of Loan Agreement without Consent of Owners. Without the consent of or notice to the Owners of the Bonds, the Issuer and the Company may modify, alter, amend, or supplement the Loan Agreement, and the Trustee may consent thereto, (a) as may be required by the provisions of the Loan Agreement and this Indenture, (b) for the purpose of curing any formal defect, omission, inconsistency or ambiguity therein, (c) in connection with any other change therein which is not materially adverse to the Owners of the Bonds or (d) to secure or maintain ratings from nationally recognized statistical rating organization, which changes will not restrict, limit or reduce the obligation of the Issuer to pay the principal of, and premium, if any, and interest on, the Bonds as provided in this Indenture or otherwise adversely affect the Owners under this Indenture. A revision of Exhibit A to the Loan Agreement shall not be deemed a modification, alteration, amendment or supplement to the Loan Agreement, or to this Indenture, for any purpose of this Indenture.
Before the Issuer shall enter into, and the Trustee shall consent to, any modification, alteration, amendment or supplement to the Loan Agreement pursuant to this Section 11.06, there shall be delivered to the Issuer and the Trustee an opinion of Bond Counsel stating that such modification, alteration, amendment or supplement is authorized or permitted by this Indenture, the Loan Agreement and the Act, complies with their respective terms, will, upon the execution and delivery thereof, be valid and binding upon the Issuer and the Company in accordance with its terms and will not adversely affect the exemption of interest on the Bonds from federal income taxation.
Section 11.07. Amendment of Loan Agreement with Consent of Owners. Except in the case of modifications, alterations, amendments or supplements referred to in Section 11.06 hereof, the Issuer shall not enter into, and the Trustee shall not consent to, any amendment, change or modification of the Loan Agreement without the written approval or consent of the Owners of not less than a majority in aggregate principal amount of the Bonds then Outstanding which would be adversely affected thereby, given and procured as provided in Section 11.03 hereof; provided, however, that, unless approved in writing by the Owners of all Bonds then Outstanding which would be adversely affected thereby, nothing in this Section 11.07 contained shall permit, or be construed as permitting, a change in the obligations of the Company under Section 4.04, 5.01 or 9.01 of the Loan Agreement. If at any time the Issuer or the Company shall request the consent of the Trustee to any such proposed modification, alteration, amendment or supplement, the Trustee shall cause notice thereof to be given in the same manner as provided by Section 11.03 hereof with respect to supplemental indentures. Such notice shall briefly set forth the nature of such proposed modification, alteration, amendment or supplement and shall state that copies of the instrument embodying the same are on file at the Principal Office of the
Trustee for inspection by all Owners of Bonds. The Issuer may enter into, and the Trustee may consent to, any such proposed modification, alteration, amendment or supplement subject to the same conditions, including the delivery of the documents required in, and with the same effect as provided in Section 11.03 hereof with respect to supplemental indentures.
Section 11.08. Irrevocable Consent. Any consent given pursuant to the provisions of this Article by any Owner of a Bond shall be irrevocable, and shall be conclusive and binding upon all future Owners of the same Bond delivered upon transfer thereof or in exchange therefor or in replacement thereof.
Article XII
Miscellaneous
Section 12.01. Successors of the Issuer. In the event of the dissolution of the Issuer, all the covenants, stipulations, promises and agreements in this Indenture contained, by or on behalf of, or for the benefit of, the Issuer, shall bind or inure to the benefit of the successors of the Issuer from time to time and any entity, officer, board, commission, agency or instrumentality to whom or to which any power or duty of the Issuer shall be transferred.
Section 12.02. Parties in Interest. Except as herein otherwise specifically provided, nothing in this Indenture expressed or implied is intended or shall be construed to confer upon any person, firm or corporation other than the Issuer, the Company, the Trustee, the Paying Agent and the Owners of the Bonds any right, remedy or claim under or by reason of this Indenture, or any covenant, condition or stipulation hereof, and all covenants, stipulations, promises and agreements in this Indenture contained by and on behalf of the Issuer shall be for the sole and exclusive benefit of the Issuer, the Company, the Trustee, the Paying Agent and the Owners of the Bonds.
Section 12.03. Severability. In case any one or more of the provisions of this Indenture or of the Bonds shall, for any reason, be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Indenture or of the Bonds, and this Indenture and the Bonds shall be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein.
Section 12.04. No Personal Liability of Officials of the Issuer. No covenant or agreement contained in the Bonds or in this Indenture shall be deemed to be the covenant or agreement of any elected or appointed official, officer, agent, servant or employee of the Issuer in his or her individual capacity, and neither the members of the governing body of the Issuer nor any official executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof.
Section 12.05. Model Public Obligations Registration Act of Montana. The Issuer hereby authorizes the Trustee to do all things authorized by the Model Public Obligations Registration Act of Montana Part 11, Chapter 5, Title 17 of the Montana Code Annotated, in connection with the registration of the Bonds. The preceding sentence shall not be construed as imposing any
obligations on the Trustee not otherwise provided for herein. For the purposes of the Model Public Obligations Registration Act of Montana, this Indenture shall constitute a “system of registration” as that term is defined in said act.
Section 12.06. Bonds Owned by the Issuer or the Company. In determining whether Owners of the requisite aggregate principal amount of the Bonds have concurred in any direction, consent or waiver under this Indenture, Bonds which are owned by the Issuer or the Company or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company (unless the Issuer, the Company or such Person owns all Bonds which are then Outstanding, determined without regard to this Section 12.06) shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Bonds which the Trustee actually knows are so owned shall be so disregarded. Bonds so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee that the pledgee is not the Issuer or the Company or any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be afforded full protection to the Trustee.
Section 12.07. Counterparts. This Indenture may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Indenture.
Section 12.08. Governing Law. This Indenture shall be governed by and construed in accordance with the laws of the State of Montana.
Section 12.09. Notices. Except as otherwise provided in this Indenture, all notices, certificates, requests, directions, requisitions or other communications by the Issuer, the Company, the Trustee, the Paying Agent or the Registrar or the Owners of the Bonds pursuant to this Indenture shall be in writing and shall be sufficiently given and shall be deemed given when mailed by first class mail, postage prepaid, addressed as follows: If to the Issuer, at City Hall, Forsyth, Montana 59327, Attention: Mayor; if to the Company, at 3010 West 69th Street, Sioux Falls, South Dakota 57108, Attention: Treasurer; if to the Trustee, at U.S. Bank Global Corporate Trust, Attn: Bondholder Services, 111 Fillmore Avenue East, St. Paul, Minnesota 55107-1402; if to the Paying Agent or the Registrar, at its Principal Office; and if to the Owners of the Bonds, at the addresses shown on the registration books kept by the Registrar. A copy of each notice, certificate, request or other communication given hereunder to the Issuer, the Company or the Trustee shall also be given to the others. Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent hereunder.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuer shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”)
and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer, whenever a person is to be added or deleted from the listing. If the Issuer and/or the Company, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer and the Company understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer or an Authorized Company Representative, as applicable, have been sent by such Authorized Officer or an Authorized Company Representative, as applicable. The Issuer and the Company shall be responsible for ensuring that only Authorized Officers or Authorized Company Representatives, as applicable, transmit such Instructions to the Trustee and that the Issuer, the Company and all Authorized Officers and Authorized Company Representatives, are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuer and/or the Company, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer and the Company agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer and/or the Company, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
Section 12.10. Holidays. If the last day of any period of grace, or the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Indenture, shall be a Saturday, Sunday, public holiday or day on which banking institutions located in the city in which is located the Principal Office of the Trustee or the Paying Agent are required or authorized by law or executive order to remain closed, the last day of such period of grace shall be deemed to be, and such payment may be made or act performed or right exercised, on the next succeeding day not such a Saturday, Sunday, public holiday or day on which such banking institutions are required or authorized by law or executive order to remain closed with the same force and effect as if done on the nominal date provided in this Indenture, and no interest shall accrue for the period after such nominal date.
(Signature page follows.)
In Witness Whereof, the City of Forsyth, Rosebud County, Montana, by order of its governing body, has caused this Indenture to be executed by its Mayor and its official seal to be impressed hereon and attested by its City Clerk, and U.S. Bank Trust Company, National Association, as Trustee, has caused this Indenture to be executed in its behalf by one of its Vice Presidents, all as of the day and year first above written.
City of Forsyth, Rosebud County, Montana
By /s/ Dennis Kopitzke
Mayor
Attest:
/s/ Sandra Donley
City Clerk
U.S. Bank Trust Company, National Association, as Trustee
By /s/ Brandon Elzinga
Vice President
Exhibit A
[Form of Bond]
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the City 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 DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), 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.
No. _______ $144,660,000
United States of America
State of Montana
City of Forsyth, Rosebud County, Montana
Pollution Control Revenue Refunding Bond
(NorthWestern Corporation Colstrip Project)
Series 2023
| | | | | | | | | | | |
| Interest Rate | Maturity Date | Issue Date | CUSIP |
| 3.875% | July 1, 2028 | June 29, 2023 | 346668 DN3 |
Registered Owner: ___________________________________________________________
Principal Amount: Dollars
The City of Forsyth, Rosebud County, Montana, a municipal corporation and political subdivision organized and existing under the Constitution and laws of the State of Montana (the “City”), for value received, hereby promises to pay (but only out of the Receipts and Revenues of the Issuer from the Loan Agreement (as hereinafter defined) and other moneys pledged therefor) to the registered owner identified above, or registered assigns, on the Maturity Date stated above unless this Bond shall have been called for redemption and payment of the redemption price shall have been duly made or provided for, upon the presentation and surrender hereof, the principal amount identified above and to pay (but only out of the Receipts and Revenues of the Issuer from the Loan Agreement and any other moneys pledged therefor) interest on said principal sum, until payment of said principal sum has been made or duly provided for, at the interest rate per annum set forth above on each Interest Payment Date (defined below), from the Interest Payment Date next preceding the date of authentication of this
Bond, unless such date of authentication shall be an Interest Payment Date to which interest on this Bond has been paid or duly provided for, in which case this Bond shall bear interest from such date of authentication, or unless this Bond is authenticated prior to the first Interest Payment Date, in which case this Bond shall bear interest from the Issue Date stated above; provided that (i) Bonds authenticated on a date which is subsequent to a Record Date for the payment of interest and prior to the related Interest Payment Date shall bear interest from such Interest Payment Date, and (ii) if, as shown by the records of the hereinafter defined Trustee, interest on the Bonds shall be in default, Bonds issued in exchange for or upon the registration of transfer of Bonds shall bear interest from the date to which interest has been paid in full on the Bonds or duly provided for or, if no interest has ever been paid on the Bonds or duly provided for, from the Issue Date, except as the provisions hereinafter set forth with respect to redemption prior to maturity may become applicable hereto; and to pay interest on overdue principal and, to the extent permitted by law, on overdue premium, if any, and interest at the rate borne by this Bond; principal of and premium, if any, on this Bond being payable to the registered owner hereof at the designated corporate trust office of U.S. Bank Trust Company, National Association, as Paying Agent, or its successor (the “Paying Agent”), and payment of the interest alone being made to the registered owner hereof by check mailed to such registered owner hereof at his address as it appears on the registration books of the City on the close of business on the 15th day (whether or not a Business Day) next preceding each Interest Payment Date or at such other address as is furnished in writing by such registered owner to U.S. Bank Trust Company, National Association, as Registrar, or its successor (the “Registrar”) at least 15 days prior to such Interest Payment Date, provided that the registered owners of $1,000,000 or more in aggregate principal amount of Bonds, upon at least 15 days’ prior written notice to the Paying Agent, may direct that all payments of interest be made to such owners on each payment date by wire transfer to their accounts with commercial banks in the United States of America in accordance with instructions set forth in such notices. Each such notice shall be effective until otherwise modified or rescinded by written notice given to the Paying Agent at least 15 days prior to an Interest Payment Date. Each Bond must be presented or surrendered to the Paying Agent for final payment of principal and premium, if any, whether at maturity or upon redemption prior to maturity. Payment of the principal of, and premium, if any, and interest on, the Bonds shall be payable in such coin or currency of the United States of America as, at the respective times of payment, shall be legal tender for the payment of public and private debts. Interest on the Bonds shall be computed upon the basis of a 360-day year, consisting of twelve 30-day months.
“Interest Payment Date” means each January 1 and July 1, commencing January 1, 2024.
This Bond and all other Bonds of the issue of which it forms a part shall not constitute an indebtedness of the City or a loan of credit thereof within the meaning of any constitutional or statutory provision, nor constitute or give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers.
This Bond is one of the duly authorized Pollution Control Revenue Refunding Bonds (NorthWestern Corporation Colstrip Project) Series 2023, of the City, aggregating $144,660,000 in principal amount (the “Bonds”), issued under and pursuant to Sections 90-5-101 to 90-5-114, inclusive, Montana Code Annotated, as amended (the “Act”), and the Indenture of Trust, dated
as of June 1, 2023 (the “Indenture”), between the City and U.S. Bank Trust Company, National Association, a national banking association, as trustee (the “Trustee”), for the purpose of providing for the payment of a portion of certain revenue bonds upon their redemption issued by the City to refinance the costs to The Montana Power Company, the predecessor in interest to NorthWestern Corporation, a Delaware corporation (the “Company”), of certain pollution control and solid waste disposal facilities (such pollution control and solid waste disposal facilities being hereinafter referred to as the “Facilities”) located at Units Nos. 3 and 4 of the Colstrip Generating Station, in Rosebud County, Montana (the “Project”). Pursuant to the Loan Agreement, dated as of June 1, 2023 (the “Loan Agreement”), between the City and the Company, the proceeds of the Bonds, other than accrued interest paid by the initial purchasers thereof, have been loaned to the Company. The obligation of the Company to repay such loan is secured by the Company’s first mortgage bonds (the “First Mortgage Bonds”) issued to the Trustee under the Mortgage and Deed of Trust, dated as of October 1, 1945, from the Company to, collectively, The Bank of New York Mellon and Mary Miselis, as Mortgage Trustee, as heretofore and hereafter amended and supplemented (the “Mortgage”), and delivered to the Trustee pursuant to the Bond Delivery Agreement, dated as of June 1, 2023, between the Trustee and the Company.
The Bonds are equally and ratably secured, to the extent provided in the Indenture, by the pledge thereunder of the “Receipts and Revenues of the Issuer from the Loan Agreement,” which term is used herein as defined in the Indenture and which as therein defined means all moneys paid or payable to the City by the Company in respect of the principal of, and premium, if any, and interest on, the Bonds pursuant to Sections 4.04 and 9.01 of the Loan Agreement and the First Mortgage Bonds, and all receipts of the Trustee which, under the provisions of the Indenture, reduce the amount of such payments. The City has also pledged and assigned to the Trustee as security for the Bonds all other rights and interests of the City under the Loan Agreement (other than its rights to indemnification and certain administrative expenses and certain other rights).
The Bonds are limited obligations of the City payable solely out of the Receipts and Revenues of the Issuer from the Loan Agreement. No registered owner of this Bond has the right to compel any exercise of the taxing power of the City to pay this Bond or the interest or premium, if any, hereon, and this Bond shall not constitute an indebtedness of the City or a loan of credit thereof within the meaning of any constitutional or statutory provisions nor shall any of the Bonds constitute or give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers.
The transfer of this Bond shall be registered upon the registration books kept at the Principal Office of the Registrar, at the written request of the registered owner hereof or his attorney duly authorized in writing, upon surrender of this Bond at said office, together with a written instrument of transfer satisfactory to the Registrar duly executed by the registered owner or his duly authorized attorney.
The Bonds shall be deliverable in the form of fully registered Bonds without coupons in the denomination of $5,000 or any integral multiple thereof (the “Authorized Denomination”).
In the manner and with the effect provided in the Indenture, the Bonds may be redeemed prior to maturity, as follows:
(a) The Bonds shall be subject to redemption by the City, in whole or in part, at any time at a redemption price equal to the principal amount of the Bonds to be redeemed plus accrued interest to the redemption date on the ninetieth day (or such earlier date as may be designated by the Company) after a Determination of Taxability, but in no case more than ninety (90) days after such determination. Subject to the foregoing provisions of this Section 3.01(a), the Bonds shall be redeemed in whole unless, in the opinion of Bond Counsel mutually acceptable to the City and the Company, the redemption of a portion of such Bonds would have the result that interest payable on the Bonds remaining Outstanding after such redemption would not be includable in the gross income for federal income tax purposes of any owner of any such Bonds. Any such partial redemption shall be in such amount as is necessary to accomplish such result.
(b) The Bonds shall be subject to mandatory redemption by the City, at the principal amount thereof plus accrued interest to the redemption date, on the 90th day (or such earlier date as may be designated by the Company) after a final determination by a court of competent jurisdiction or an administrative agency, to the effect that, as a result of a failure by the Company to perform or observe any covenant, agreement or warranty contained in the Loan Agreement or any similar agreement of the Company relating to the Prior Bonds or to any bonds of the City which were refunded, directly or indirectly, by the Prior Bonds, the interest payable on the Bonds is included for federal income tax purposes in the gross income of the owners thereof, other than as a result of any Owner of a Bond being a “substantial user” of the Facilities or a “related person” within the meaning of Section 103(b) of the 1954 Code. No determination by any court or administrative agency shall be considered final for the purposes of this subsection (b) unless the Company shall have been given timely notice of the proceeding that resulted in such determination and an opportunity to participate in such proceeding, either directly or through an Owner of a Bond, to a degree it deems sufficient and until the conclusion of any appellate review sought by any party to such proceeding or the expiration of the time for seeking such review. The Bonds will be redeemed either in whole or in part in such principal amount that the interest payable on the Bonds remaining Outstanding after such redemption would not be included in the gross income of any Owner thereof, other than an Owner of a Bond who is a “substantial user” of the Facilities or a “related person” within the meaning of Section 103(b) of the 1954 Code. If less than all the Bonds are to be redeemed in accordance with this subsection (b), there shall be delivered to the Trustee, as a condition to such partial redemption, together with the notice of the Company pursuant to Section 9.01 of the Loan Agreement, an opinion of Bond Counsel as to the matters set forth in the preceding sentence, including a specification as to the principal amount of such partial redemption.
(c) The Bonds shall be subject to redemption at the option of the Company, in whole, at any time, or from time to time in part, on or after the date that is ninety (90) days prior to the maturity date of the Bonds, at the redemption price equal to 100% of the principal amount to be redeemed, plus accrued interest, if any, to the redemption date.
If less than all of the Bonds shall be called for redemption, the particular Bonds and $5,000 units thereof to be redeemed shall be selected by the Trustee, pro rata, by lot or by such other method as the Trustee shall deem fair and appropriate, and in the principal amount designated to the Trustee by the Company or otherwise as required by the Indenture; provided, however, that if the Company shall have offered to purchase all Bonds then outstanding and less than all outstanding Bonds shall have been tendered to the Company for such purchase, the Trustee, at the direction of the Company, shall select for redemption all Bonds which shall not have been so tendered.
In the event any of the Bonds are called for redemption, the Trustee shall give notice, in the name of the City, of the redemption of such Bonds, which notice shall (i) specify the Bonds to be redeemed, the redemption date, the redemption price and the place where amounts due upon such redemption will be payable and, if less than all of the Bonds are to be redeemed, the numbers of the Bonds, and the portions thereof, so to be redeemed, (ii) state any condition to such redemption, and (iii) state that on the redemption date, and upon satisfaction of any such condition, the Bonds or portions thereof to be redeemed shall cease to bear interest. Such notice shall be given by first-class mail at least 30 days prior to the date fixed for redemption to the owners of the Bonds to be redeemed at the addresses shown on the registration books kept by the Registrar; provided, however, that failure to duly give such notice, or any defect therein, shall not affect the validity of any proceedings for the redemption of Bonds with respect to which no such failure or defect occurred.
With respect to any notice of redemption of Bonds in accordance with clause (a) of the third preceding paragraph, unless, upon the giving of such notice, such Bonds shall be deemed to have been paid within the meaning of the Indenture, such notice shall state that such redemption shall be conditional upon the receipt by the Trustee on or prior to the date fixed for such redemption of moneys sufficient to pay the principal of, and premium, if any, and interest on, such Bonds to be redeemed, and that, if such moneys shall not have been so received, said notice shall be of no force and effect and the City shall not redeem such Bonds. In the event that such notice of redemption contains such a condition and such moneys are not so received, the redemption shall not be made and the Trustee shall, within a reasonable time thereafter, give notice, in the manner in which the notice of redemption was given, that such moneys were not so received.
If a notice of redemption shall be unconditional, or if the conditions of a conditional notice of redemption shall have been satisfied, then upon presentation and surrender of Bonds so called for redemption at the place or places of payment such Bonds shall be redeemed. All Bonds and portions of Bonds which have been duly selected for redemption and which are deemed to be paid in accordance with the Indenture shall cease to bear interest on the specified redemption date and shall thereafter cease to be entitled to any lien, benefit or security under the Indenture.
The owner of this Bond shall have no right to enforce the provisions of the Indenture, or to institute action to enforce the covenants therein, or to take any action with respect to any default under the Indenture, or to institute, appear in or defend any suit or other proceeding with respect thereto, except as provided in the Indenture.
With certain exceptions as provided therein, the Indenture and the Loan Agreement may be modified or amended only with the consent of the Company and the owners of not less than a majority in aggregate principal amount of all Bonds outstanding under the Indenture which would be adversely affected thereby.
Reference is hereby made to the Indenture, the Loan Agreement and the Bond Delivery Agreement, copies of which are on file with the Trustee, and the First Mortgage Bonds, which are held by the Trustee, for the provisions, among others, with respect to the nature and extent of the rights, duties and obligations of the City, the Company, the Trustee and the owners of the Bonds, including provisions relating to acceleration under certain circumstances. The owner of this Bond, by the acceptance hereof, is deemed to have agreed and consented to the terms and provisions of the Indenture, the Loan Agreement, the Bond Delivery Agreement and the First Mortgage Bonds.
The City, the Trustee, the Registrar and the Paying Agent may deem and treat the Person in whose name this Bond is registered as the absolute owner hereof for all purposes, whether or not this Bond is overdue, and neither the City, the Trustee, the Registrar nor the Paying Agent shall be affected by any notice to the contrary.
No covenant or agreement contained in this Bond or the Indenture shall be deemed to be the covenant or agreement of any elected or appointed official, officer, agent, servant or employee of the City in his individual capacity, and no such person shall be liable personally on this Bond or be subject to any personal liability or accountability by reason of the issuance of this Bond.
Initially capitalized terms used and not otherwise defined herein shall have the meanings assigned such terms in the Indenture.
It Is Hereby Certified, Recited and Declared that all acts, conditions and things required to exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Bond and the issue of which it forms a part, together with all other obligations of the City, does not exceed or violate any constitutional or statutory limitation of indebtedness.
This Bond shall not be entitled to any security or benefit under the Indenture, or be valid or become obligatory for any purpose, until this Bond shall have been authenticated by the execution by the Trustee of the certificate of authentication inscribed hereon.
In Witness Whereof, the City of Forsyth, Rosebud County, Montana, has caused this Bond to be executed with the manual or facsimile signature of its Mayor and attested by the manual
or facsimile signature of its City Clerk and its corporate seal or a facsimile thereof to be impressed or imprinted hereon all as of the Issue Date.
City of Forsyth, Rosebud County, Montana
By
Mayor
Attest:
City Clerk
[Seal]
[Form of Trustee’s Certificate]
Certificate of Authentication
This is to certify that this Bond is one of the Bonds described in the within-mentioned Indenture of Trust.
U.S. Bank Trust Company, National Association, as Trustee
Date of registration and authentication:
By
Authorized Officer
[Form of Assignment]
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations.
| | | | | |
| TEN COM — as tenants in common TEN ENT — as tenants by the entirety JT TEN — as joint tenants with right of survivorship and not as tenants in common | UNIF TRANS MIN ACT— ________ Custodian ________
(Cust) (Minor)
under Uniform Transfer to Minors Act of
_________________________________
(State) |
Additional abbreviations may also be used though not in the above list.
For Value Received ___________________________________ hereby sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number of Assignee
______________________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
the Bond of the City of Forsyth, Rosebud County, Montana, and does hereby irrevocably constitute and appoint _____________________________ Attorney to register the transfer of said Bond on the books kept for registration thereof, with full power of substitution in the premises.
Dated:_________________________ Signature:________________________
Signature Guaranteed:
_________________________________
Notice: Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee, which requirements include membership or participation in STAMP or such other “signature guarantee program” as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities and Exchange Act of 1934, as amended.
Notice: The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever.
Loan Agreement
between
City of Forsyth, Rosebud County, Montana
and
NorthWestern Corporation
Dated as of June 1, 2023
Relating to
$144,660,000
Pollution Control Revenue Refunding Bonds
(NorthWestern Corporation Colstrip Project)
Series 2023
The amounts payable to the City of Forsyth, Rosebud County, Montana (the “Issuer”), and certain other rights of the Issuer under this Loan Agreement and in the first mortgage bonds of NorthWestern Corporation (the “Company”) that shall be delivered by the Company in accordance with Section 5.01 hereof (except for amounts payable to, and certain rights and privileges of, the Issuer under Sections 5.03, 5.04, 5.05, 6.03, 6.04, 8.05 and 8.07 hereof and any rights of the Issuer to receive notices, certificates, requests, requisitions, directions and other communications hereunder) have been pledged and assigned to U.S. Bank Trust Company, National Association, as Trustee under the Indenture of Trust, dated as of June 1, 2023, between the Issuer and said Trustee. For the purpose of perfecting the security interest of such Trustee in such amounts payable and such rights assigned to such Trustee, under the Montana Uniform Commercial Code—Secured Transactions or otherwise, the counterpart of this Loan Agreement and the first mortgage bonds delivered, pledged and assigned to such Trustee shall be deemed the original thereof.
Loan Agreement 4891-4036-2852 v8.docx
8711566/RDB/ Loan Agreement
Table of Contents
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Article I Definitions | |
Section 1.01. Definitions | |
Article II Representations and Warranties | |
Section 2.01. Representations and Warranties of the Issuer | |
Section 2.02. Representations and Warranties of the Company | |
Article III The Facilities | |
Section 3.01. Maintenance of Facilities | |
Section 3.02. Facilities Insurance | |
Section 3.03. Condemnation | |
Section 3.04. Termination of Operation | |
Article IV Issuance of the Bonds; the Loan; Disposition of Proceeds of the Bonds; Loan Payments | |
Section 4.01. Issuance of the Bonds | |
Section 4.02. Issuance of Other Obligations | |
Section 4.03. The Loan; Disposition of Bond Proceeds; Refunding Prior Bonds | |
Section 4.04. Loan Repayments | |
Section 4.05. Compliance with Prior Agreements | |
Article V The First Mortgage Bonds; Other Obligations | |
Section 5.01. Issuance, Delivery and Surrender of First Mortgage Bonds | |
Section 5.02. Payments Assigned; Obligation Absolute | |
Section 5.03. Payment of Expenses | |
Section 5.04. Indemnification | |
Section 5.05. Payment of Taxes; Discharge of Liens | |
Article VI Special Covenants | |
Section 6.01. Maintenance of Existence | |
Section 6.02. Permits or Licenses | |
Section 6.03. Issuer’s Access to Facilities | |
Section 6.04. Arbitrage and Tax Exemption Certifications and Covenants | |
Section 6.05. Use of Facilities | |
Section 6.06. Financing Statements | |
Section 6.07. Company Changes | |
Section 6.08. Indenture Covenants | |
Article VII Assignment | |
Section 7.01. Conditions | |
Section 7.02. Instruments Furnished to Trustee | |
Section 7.03. Limitation | |
Article VIII Events of Default and Remedies | |
| | | | | |
Section 8.01. Events of Default | |
Section 8.02. Force Majeure | |
Section 8.03. Remedies | |
Section 8.04. No Remedy Exclusive | |
Section 8.05. Reimbursement of Attorneys’ Fees | |
Section 8.06. Waiver of Breach | |
Section 8.07. No Liability of Issuer | |
Article IX Redemption or Purchase of Bonds | |
Section 9.01. Redemption of Bonds | |
Section 9.02. Purchase of Bonds | |
Section 9.03. Compliance with the Indenture | |
Article X Miscellaneous | |
Section 10.01. Term of Loan Agreement | |
Section 10.02. Notices | |
Section 10.03. Parties in Interest | |
Section 10.04. Amendments | |
Section 10.05. Counterparts | |
Section 10.06. Severability | |
Section 10.07. Governing Law | |
Exhibit A – Colstrip Units Pollution Control Facilities
Loan Agreement
This Loan Agreement, dated as of June 1, 2023, between the City of Forsyth, Rosebud County, Montana, a municipal corporation and political subdivision organized and existing under the Constitution and laws of the State of Montana (the “Issuer”), and NorthWestern Corporation, a corporation organized and existing under the laws of the State of Delaware (the “Company”),
Witnesseth
Whereas, the Issuer is authorized by the provisions of the Act (as hereinafter defined) to issue one or more series of its revenue bonds and to loan the proceeds to others for the purpose of defraying the cost of acquiring or improving projects consisting of land, any building or other improvement, and any other real and personal properties deemed necessary in connection therewith, whether or not now in existence, whether located within or without the boundaries of the Issuer, which shall be suitable for, among other things, Electric Energy Generation Facilities (as defined in the Act), including appurtenant land and improvements and personal property that are normally operated together to produce electric power (which includes air and water pollution control facilities and sewage and solid waste disposal facilities);
Whereas, the Issuer is authorized by the provisions of the Act to issue one or more series of its revenue refunding bonds to refund revenue bonds issued under the provisions of the Act;
Whereas, the Act provides that payment of principal of and interest on revenue bonds issued thereunder shall be secured by a pledge of the revenues out of which such revenue bonds shall be payable and may be secured by a pledge of an agreement relating to a project and such other security device as may be deemed most advantageous by the Issuer;
Whereas, the Issuer has heretofore issued and sold the Prior Bonds (as hereinafter defined), all of which will be outstanding on the date of the authentication and delivery of the Bonds (as hereinafter defined), for the purpose of refinancing the cost to The Montana Power Company (the predecessor in interest of the Company) of acquiring and improving the Facilities (as hereinafter defined);
Whereas, the Issuer, by resolution adopted pursuant to and in accordance with the Act, has authorized and undertaken to issue the Bonds for the purpose of refunding the Prior Bonds;
Whereas, the Issuer has agreed under this Loan Agreement to lend to the Company the proceeds (other than accrued interest, if any) from the sale of the Bonds for the purpose of refunding the Prior Bonds;
Whereas, the Company has agreed under this Loan Agreement to make payments sufficient to pay when due (whether at stated maturity, by acceleration or otherwise) the principal of, and premium, if any, and interest, on the Bonds; and
Whereas, the Company has issued and delivered the Company’s First Mortgage Bonds (as hereinafter defined) to the Trustee (as hereinafter defined) to secure the payment of certain of its obligations hereunder;
Now, Therefore, the parties hereto, intending to be legally bound hereby and in consideration of the premises, do hereby agree as follows:
Article I
Definitions
Section 1.01. Definitions. The terms defined in Article I of the Indenture of Trust between the City of Forsyth, Rosebud County, Montana, and U.S. Bank Trust Company, National Association, a national banking association, as Trustee, dated as of June 1, 2023, shall, for all purposes of this Loan Agreement, have the meanings specified therein, unless the context clearly requires otherwise.
Article II
Representations and Warranties
Section 2.01. Representations and Warranties of the Issuer. The Issuer represents, warrants and agrees that:
(a) The Issuer is a municipal corporation and political subdivision duly organized and existing under the Constitution and laws of the State of Montana.
(b) The Issuer has the power to enter into this Loan Agreement and the Indenture and to perform and observe the agreements and covenants on its part contained herein and therein, including without limitation the power to issue and sell the Bonds as contemplated herein and in the Indenture, and by proper corporate action has duly authorized the execution and delivery hereof and thereof.
(c) The execution and delivery of this Loan Agreement and the Indenture by the Issuer do not, and consummation of the transactions contemplated hereby and thereby and fulfillment of the terms hereof and thereof by the Issuer will not, result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Issuer is now a party or by which it is now bound, or any order, rule or regulation applicable to the Issuer of any court or of any regulatory body or administrative agency or other governmental body having jurisdiction over the Issuer or over any of its properties, or any statute of any jurisdiction applicable to the Issuer.
(d) The Issuer has not assigned and will not assign its interest in this Loan Agreement other than to secure the Bonds.
(e) The public hearing and approval requirements of Section 90-5-104 of the Act relating to the Project have been satisfied.
Section 2.02. Representations and Warranties of the Company. The Company represents, warrants and agrees that:
(a) The Company is a corporation duly organized and existing in good standing under the laws of the State of Delaware.
(b) The Company has the power to enter into this Loan Agreement and to perform and observe the agreements and covenants on its part contained herein, including without limitation the power to issue and deliver the First Mortgage Bonds as contemplated herein, in the Mortgage and in the Bond Delivery Agreement, and by proper corporate action has duly authorized the execution and delivery hereof.
(c) The execution and delivery of this Loan Agreement by the Company do not, and consummation of the transactions contemplated hereby and fulfillment of the terms hereof by the Company, including, without limitation, the issuance and delivery of the First Mortgage Bonds and the execution and delivery of the Bond Delivery Agreement, will not, result in a material breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party or by which it is now bound, or the Amended and Restated Certificate of Incorporation, as amended, or the Bylaws of the Company, or any order, rule or regulation applicable to the Company of any court or of any regulatory body or administrative agency or other governmental body having jurisdiction over the Company or over any of its properties, or any statute of any jurisdiction applicable to the Company.
(d) The Montana Public Service Commission and the Federal Energy Regulatory Commission have approved all of the transactions contemplated by this Loan Agreement which require their approval, and no other consent, approval, authorization or other order of any governmental body is required for the Company’s participation therein, except such as may have been obtained or may be required under the securities laws of any jurisdiction.
(e) The information relating to the Facilities (other than estimates) furnished by the Company or The Montana Power Company, as its predecessor in interest, in writing to Chapman and Cutler LLP, as Bond Counsel, in connection with the issuance by the Issuer of the Original Bonds, the Prior Bonds, the Series 1993 Bonds, the Series 2006 Bonds and the Bonds, was, at the time furnished, and remains, to the Company’s knowledge, true and correct.
(f) The Facilities consist of those facilities described in Exhibit A hereto and are (i) designed to meet applicable federal, state and local requirements for the control of pollution or the disposal of solid waste, (ii) to be used solely for purposes contemplated by the Act, and (iii) located within Rosebud County, Montana.
(g) The Montana Department of Health and Environmental Sciences has certified that the pollution control facilities constituting part of the Facilities, as designed, are in furtherance of the purpose of abating or controlling atmospheric pollutants or contaminants, and water pollution, as the case may be.
(h) The Company has received an executed counterpart of the Indenture and consents to and approves each and every provision thereof.
(i) To the Company’s knowledge, (i) the Indenture of Trust, dated as of August 1, 2016 (the “Prior Indenture”), between the Issuer and U.S. Bank National Association, as trustee (the “Prior Trustee”) and (ii) the Loan Agreement, dated as of August 1, 2016, between the Issuer and the Company (the “Prior Loan Agreement”), pursuant to each of which the Prior Bonds were issued and sold and are outstanding, are in full force and effect, without amendment (except as described above), and no event has occurred and is continuing under the provisions of any of such instruments which event now constitutes, or with the lapse of time or the giving of notice, or both, would constitute, an event of default thereunder.
Article III
The Facilities
Section 3.01. Maintenance of Facilities. The Company shall at all times exercise all of its rights, powers, elections and options under the Inter-Company Agreements to cause the Facilities, and every element and unit thereof, to be maintained in good repair, working order and condition; provided, however, that the Company may cause the discontinuance of the operation or a reduction in the capacity of the Facilities, or any element or unit thereof, if, in the judgment of the Company, it is no longer economic to operate the same or to operate the same at its former capacity, or if the Company intends to sell and dispose of its interest in the same and within a reasonable time shall endeavor to effectuate such sale or disposition.
The Company may, at its own expense, exercise any of its rights, powers, elections and options under the Inter-Company Agreements to cause the Facilities to be remodeled or cause such substitutions, modifications and improvements to be made to the Facilities from time to time as it, in its discretion, may deem to be desirable for its uses and purposes, which remodeling, substitutions, modifications and improvements shall be included under the terms of this Loan Agreement as part of the Facilities; provided, however, that the Company shall not exercise any such right, power, election or option if the proposed remodeling, substitution, modification or improvement would adversely affect the exclusion of interest on the Bonds from the gross income of Owners thereof for federal income tax purposes.
Section 3.02. Facilities Insurance. The Company shall exercise all its rights and powers and will perform all of its duties under the Inter-Company Agreements to cause insurance to be taken out and continuously maintained in effect with respect to the Facilities against such risks and to such extent as is required by the Inter-Company Agreements. All proceeds of such
insurance shall be for the account of the Company to the extent of the interest of the Company in the Facilities.
Section 3.03. Condemnation. The Company shall be entitled to the proceeds of any condemnation award or portion thereof made for damage to or taking of the Facilities or other property of the Company, to the extent of the interest of the Company in the Facilities or such other property, as the case may be.
Section 3.04. Termination of Operation. Anything in this Loan Agreement to the contrary notwithstanding, the Company shall have the right at any time to cause the operation of the Facilities to be terminated if the Company shall have determined that the continued operation of the Project or the Facilities is uneconomical for any reason.
Article IV
Issuance of the Bonds; the Loan; Disposition
of Proceeds of the Bonds; Loan Payments
Section 4.01. Issuance of the Bonds. The Issuer shall issue and sell the Bonds under and in accordance with the Indenture and the bond purchase agreement between the Issuer and the underwriters of the Bonds. The Company hereby approves the issuance and sale of the Bonds as aforesaid.
Section 4.02. Issuance of Other Obligations. The Issuer and the Company expressly reserve the right to enter into, to the extent permitted by law, an agreement or agreements other than this Loan Agreement with respect to the issuance by the Issuer, under an indenture or indentures other than the Indenture, of obligations to provide funds to defray any additional costs of construction of the Facilities or to refund any or all of the Bonds.
Section 4.03. The Loan; Disposition of Bond Proceeds; Refunding Prior Bonds. (a) The Issuer shall lend to the Company the proceeds of the issuance and sale of the Bonds for the purposes specified in this Loan Agreement, such proceeds to be applied as provided hereinafter and in the Indenture.
(b) The Issuer and the Company shall cause the proceeds of the Bonds to be irrevocably deposited with the Prior Trustee under the Prior Indenture pursuant to which the Prior Bonds have been issued in order to pay the principal amount of the Prior Bonds upon their maturity. The Company, simultaneously with the transfer of such proceeds referred to in the preceding sentence and at its own expense and without any right of reimbursement in respect thereof, shall pay to such trustee for irrevocable deposit into the bond fund under such Prior Indenture, all amounts necessary to pay the interest coming due on the Prior Bonds on August 1, 2023.
The Issuer shall establish the Bond Fund with the Trustee in accordance with Section 4.01 of the Indenture. The proceeds of the issuance and sale of the Bonds constituting accrued interest, if any, paid by the initial purchasers thereof shall be deposited into the Bond Fund.
Section 4.04. Loan Repayments. (a) As and for repayment of the loan made to the Company by the Issuer pursuant to Section 4.03 hereof, the Company shall pay to the Trustee for the account of the Issuer an amount equal to the aggregate principal amount of, and the premium, if any, on the Bonds from time to time Outstanding and, as interest on its obligation to pay such amount, an amount equal to interest on the Bonds, such amounts to be paid in installments of immediately available funds due on the dates, in the amounts and in the manner provided in the Indenture for the payment of the principal of, and premium, if any, and interest on, the Bonds whether at maturity, upon redemption or otherwise; provided, however, that the obligation of the Company to make any such payment hereunder shall be reduced by the amount on deposit in the Bond Fund pursuant to Section 2.10 of the Indenture.
(b) In the event the Company shall fail to make any payment required by Section 4.04(a) with respect to the principal of, or premium, if any, or interest on, any Bond, the payment so in default shall continue as an obligation of the Company until the amount in default shall have been fully paid and the Company will pay interest on any overdue amount with respect to principal of such Bond and, to the extent permitted by law, on any overdue amount with respect to premium, if any, and interest on such Bond, at the interest rate borne by such Bond until paid.
Section 4.05. Compliance with Prior Agreements. The Company hereby confirms its obligations under the Prior Agreement to furnish any moneys required to be deposited with the Prior Trustee under the Prior Indenture in order to pay off the Prior Bonds at their maturity on August 1, 2023, to the extent that the proceeds of the Bonds on deposit in the bond fund established for the Prior Bonds, together with any investment earnings thereon, is less than the amount required to pay the principal of and interest on the Prior Bonds on August 1, 2023, in accordance with the terms and conditions of the Prior Indenture.
Article V
The First Mortgage
Bonds; Other Obligations
Section 5.01. Issuance, Delivery and Surrender of First Mortgage Bonds. The obligation of the Company pursuant to Section 4.04 hereof to repay the loan made to it by the Issuer pursuant to Section 4.03 hereof shall be secured by the First Mortgage Bonds. Concurrently with the issuance and delivery by the Issuer of the Bonds, the Company shall issue and deliver or caused to be delivered to the Trustee a series of First Mortgage Bonds as provided in the Bond Delivery Agreement (i) maturing on the same date and in the same principal amount as the Bonds, (ii) bearing interest at the same rate, payable at the same times, as the Bonds, (iii) containing redemption provisions correlative to the provisions of Section 3.01 of the Indenture, and (iv) requiring payments of the principal thereof and premium, if any, and interest thereon to be made when due to the Trustee for the account of the Issuer. The First Mortgage Bonds shall be delivered to and registered in the name of the Trustee for the account of the Issuer and the benefit of the Owners from time to time of the Bonds and shall be held, voted, transferred and surrendered by the Trustee subject to and in accordance with the respective provisions of this Loan Agreement, the Indenture and the Bond Delivery Agreement.
Section 5.02. Payments Assigned; Obligation Absolute. It is understood and agreed that all payments to be made by the Company hereunder (except for payments made to the Issuer pursuant to Sections 5.03, 5.04, 5.05, 6.04 and 8.05 hereof) and on the First Mortgage Bonds are, by the Indenture, pledged and assigned by the Issuer to the Trustee, and that all rights and interest of the Issuer hereunder (except for the Issuer’s rights under Sections 5.03, 5.04, 5.05, 6.03, 6.04, 8.05 and 8.07 hereof and any rights of the Issuer to receive notices, certificates, requests, requisitions, directions and other communications hereunder), including rights under the Bond Delivery Agreement with respect to the First Mortgage Bonds, are, by the Indenture, pledged and assigned to the Trustee. The Company assents to such pledge and assignment. The obligation of the Company to make the payments hereunder and on the First Mortgage Bonds, shall be absolute, irrevocable and unconditional and shall not be subject to cancellation, termination or abatement, or to any defense other than payment or to any right of set-off, counterclaim or recoupment arising out of any breach under this Loan Agreement, the Indenture or otherwise by the Issuer or the Trustee or any other party, or out of any obligation or liability at any time owing to the Company by the Issuer, the Trustee or any other party, and, further, the payments hereunder and on the First Mortgage Bonds shall continue to be payable at the times and in the amounts herein specified, whether or not the Facilities or the Project, or any portion thereof, shall have been destroyed by fire or other casualty, or title thereto, or the use thereof, shall have been taken by the exercise of the power of eminent domain, and, further, there shall be no abatement of or diminution in any such payments by reason thereof, whether or not the Facilities or the Project shall be used or useful, whether or not any applicable laws, regulations or standards shall prevent or prohibit the use of the Facilities or the Project, or for any other reason.
Section 5.03. Payment of Expenses. The Company shall pay (a) all of the reasonable expenses incurred by the Issuer with respect to this Loan Agreement, the Indenture and any transaction or event contemplated by this Loan Agreement or the Indenture, including without limitation the out-of-pocket expenses of the Issuer and counsel for the Issuer incurred in connection with the authorization, issuance and sale of the Bonds and (b) the compensation and reimbursement of expenses and advances payable to the Trustee, the Paying Agent and the Registrar under any provision of this Loan Agreement or the Indenture. Such payments shall be made directly to each such entity.
Section 5.04. Indemnification. The Company agrees that the Issuer and its elected or appointed officials, officers, agents, legal counsel, servants and employees, and the Trustee and its directors, officers, employees and agents (collectively, the “Indemnified Parties”), shall not be liable for, and that the Company will at all times indemnify and hold harmless, the Indemnified Parties from and against any loss or liability, and pay all expenses of the Indemnified Parties relating to any lawsuit, proceeding or claim arising out of, or in any way relating to, the execution, delivery or performance of this Loan Agreement or the Bond Delivery Agreement or the Indenture or any action taken or omitted to be taken hereunder or thereunder, the acceptance or administration by the Trustee of its trusts under the Indenture, the issuance or sale of the Bonds, or any cause whatsoever relating to the Facilities, except, in any case, as a result of the negligence or willful misconduct of the Indemnified Party seeking indemnification. In case any action shall be brought against any Indemnified Party in respect of which indemnity may be sought hereunder against the Company, such Indemnified Party shall promptly notify the Company in writing and the Company shall assume the defense thereof, including the
employment of counsel reasonably acceptable to the Indemnified Party and the payment of all expenses. Failure by such Indemnified Party to notify the Company shall not relieve the Company from any liability which it may have to such Indemnified Party otherwise than under this Section 5.04. Such Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be paid by such Indemnified Party unless the employment of such counsel has been authorized by the Company. The Company shall not be liable for any settlement of any such action without its consent, but if any such action is settled with the consent of the Company or if there be final judgment for the plaintiff in any such action, the Company shall indemnify and hold harmless such Indemnified Party from and against any loss or liability by reason of such settlement or judgment.
Section 5.05. Payment of Taxes; Discharge of Liens. The Company shall: (a) pay, or make provision for payment of, all lawful taxes and assessments, including income, profits, property or excise taxes, if any, or other municipal or governmental charges, levied or assessed by any federal, state or municipal government or political body upon its interest in the Facilities or any part thereof or upon any amounts payable hereunder or on the First Mortgage Bonds when the same shall become due; and (b) pay or cause to be satisfied and discharged or make adequate provision to satisfy and discharge, within sixty (60) days after the same shall accrue, any lien or charge upon any amounts payable hereunder or on the First Mortgage Bonds, and all lawful claims or demands for labor, materials, supplies or other charges which, if unpaid, might be or become a lien thereon; provided, that, the Company may, at its expense, and in its own name and behalf or in the name and behalf of the Issuer, in good faith contest any such taxes, assessments and other charges, and in such event may permit the taxes, assessments and other charges so contested to remain unpaid during the period of such contest and any appeal therefrom, provided during such period enforcement of such contested item is effectively stayed unless by nonpayment of any such items the lien of the Indenture as to the amounts payable hereunder or on the First Mortgage Bonds will be materially endangered, in which event the Company shall promptly pay and cause to be satisfied and discharged all such unpaid items. The Issuer shall cooperate fully with the Company in any such contest. In the event that the Company shall fail to pay any of the foregoing items required by this Section to be paid by the Company, either the Issuer or the Trustee, in its discretion and without notice to the Owners of the Bonds, may make advances to effect payment of such items on behalf of the Company, but neither the Issuer nor the Trustee shall have any obligation to do so. Any and all such advances may bear interest at a rate per annum equal to the prime lending rate of the Trustee. No such advance shall operate to relieve the Company from any default hereunder.
Article VI
Special Covenants
Section 6.01. Maintenance of Existence. Except as permitted in this Section 6.01, the Company shall maintain its corporate existence, will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge with or into another corporation. The Company may consolidate with or merge with or into another corporation incorporated under the laws of the United States of America, any state thereof or the District of
Columbia, or sell, transfer or otherwise dispose of all or substantially all of its assets to any other entity if (a) no Event of Default under this Loan Agreement shall have occurred and be continuing, (b) the surviving, resulting or transferee corporation (if other than the Company), as the case may be, prior to or simultaneously with such merger, consolidation, sale, transfer or disposition, assumes, by delivery to the Trustee of an instrument in writing satisfactory in form to the Trustee, all the obligations of the Company hereunder and the obligations of the Company on the First Mortgage Bonds, and (c) in the case of a merger or consolidation in which the Company is not the surviving or resulting entity or in the case of such a sale, transfer or disposition, the Company shall deliver to the Trustee an opinion of counsel to the Company that such consolidation, merger, sale, transfer or disposition complies with the provisions of this Section 6.01.
If a consolidation, merger, sale or other transfer is made as permitted by this Section 6.01, the provisions of this Section 6.01 shall continue in full force and effect and no further consolidation, merger, sale or other transfer shall be made except in compliance with the provisions of this Section 6.01.
Section 6.02. Permits or Licenses. In the event that it may be necessary for the proper performance of this Loan Agreement on the part of the Company or the Issuer that any application or applications for any permit or license to do or to perform certain things be made to any governmental or other agency by the Company or the Issuer, the Company and the Issuer each, upon the request of the other, shall execute such application or applications.
Section 6.03. Issuer’s Access to Facilities. The Issuer shall have the right, subject to such limitations, restrictions and requirements as the Company may reasonably prescribe and upon appropriate prior notice to the Company, to have reasonable access to the Facilities during normal business hours for the purpose of making examinations and inspections of the same.
Section 6.04. Arbitrage and Tax Exemption Certifications and Covenants. The Company covenants for the benefit of the Issuer and the Owners from time to time of the Bonds that, so long as any of the Bonds remain Outstanding, it will not take or omit to take any action, or permit to be taken any action, and that moneys on deposit in any fund or account in connection with the Bonds, whether or not such moneys were derived from the proceeds of the sale of the Bonds or from any other sources, will not be used or invested in a manner, which will cause the Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code or which will otherwise cause interest on the Bonds to be includible in the gross income of the Owners thereof for purposes of federal income taxation. To such end, the Company has entered into the Tax Certificate. The Company covenants and agrees that it will comply with the Tax Certificate, as the same may be amended from time to time, in accordance with its terms. Pursuant to such covenant, the Company obligates itself to comply with the requirements of Section 148 of the Code, so long as any of the Bonds are Outstanding. The Company shall not be deemed to have violated this covenant by virtue of the fact that interest on any of the Bonds becomes includible in gross income of a Person who is a “substantial user” of the Facilities or a “related person” within the meaning of Section 103(b) of the 1954 Code.
Section 6.05. Use of Facilities. The Company shall exercise all of its rights, powers, elections and options under the Inter-Company Agreements to cause the Facilities to be used for purposes contemplated by the Act.
Nothing contained in this Loan Agreement shall be construed to require or authorize the Issuer to operate the Facilities or conduct any business enterprise therewith.
Section 6.06. Financing Statements. (a) The Company shall, to the extent required by law, file, record, refile and re-record, or cause to be filed, recorded, refiled and re-recorded, all documents or notices, including financing statements and continuation statements, required by law in order to perfect, or maintain the perfection of, the lien of the Indenture. The Issuer shall cooperate fully with the Company in taking any such action. Concurrently with the execution and delivery of the Bonds, the Company shall cause to be delivered to the Trustee an opinion of counsel (a) stating that in the opinion of such counsel, either (i) such action has been taken, as set forth therein, with respect to the recording and filing of such documents, notices and financing statements as is necessary to perfect the lien of the Indenture under the Uniform Commercial Code of the State of Montana, or (ii) no such action is necessary to so perfect such lien, and (b) stating the requirements for the filing of continuation statements or other documentation or notices in order to maintain the perfection of the lien of the Indenture.
(b) The Company shall be responsible for and shall pay any reasonable expenses of the Trustee, including legal fees, incurred pursuant to Section 6.10(b) of the Indenture.
Section 6.07. Company Changes. The Company will not voluntarily or involuntarily change its place of business, the state of its incorporation or formation or legal name without at least thirty (30) days prior written notice to the Trustee, except in the event of a change in the principal place of business necessitated by fire, flood or other calamity, in which case such notice shall be provided as soon as practicable.
Section 6.08. Indenture Covenants. The Company agrees to observe and perform all requirements imposed upon it pursuant to the Indenture.
Article VII
Assignment
Section 7.01. Conditions. The Company’s interest in this Loan Agreement may be assigned as a whole or in part by the Company to another entity, subject, however, to the condition that no assignment shall cause the interest payable on the Bonds (other than Bonds held by a “substantial user” or “related person” within the meaning of Section 103(b)(13) of the 1954 Code) to be subject to federal income taxation or (other than as described in Section 6.01 hereof) relieve the Company from primary liability for its obligations on the First Mortgage Bonds or to make payments to the Trustee under Section 4.04 hereof or for any other of its obligations hereunder; and subject further to the condition that the Company shall have delivered to the Trustee (a) an opinion of counsel to the Company that such assignment complies with the provisions of this Section 7.01, and (b) an opinion of Bond Counsel to the effect that the
proposed assignment will not impair the validity under the Act of the Bonds or the exemption from federal income taxation of the interest thereon.
Section 7.02. Instruments Furnished to Trustee. The Company shall, within fifteen (15) days after the delivery thereof, furnish to the Issuer and the Trustee a true and complete copy of the agreements or other documents effectuating any such assignment.
Section 7.03. Limitation. This Loan Agreement shall not be assigned nor shall the Facilities be leased or sold, in whole or in part, except as provided in this Article VII or in Sections 3.01 or 6.01.
Article VIII
Events of Default and Remedies
Section 8.01. Events of Default. Each of the following events shall constitute and is referred to in this Loan Agreement as an “Event of Default”:
(a) a failure by the Company to pay when due any amounts required to be paid under Section 4.04(a) hereof or otherwise on the First Mortgage Bonds, which failure results in an Event of Default under Sections 8.01(a) or 8.01(b) of the Indenture;
(b) a failure by the Company to pay when due any amount required to be paid under this Loan Agreement or to observe and perform any covenant, condition or agreement on its part to be observed or performed (other than a failure referred to in subsection (a) above), which failure shall continue for a period of ninety (90) days after written notice, specifying such failure and requesting that it be remedied, shall have been given to the Company by the Issuer or the Trustee, unless the Issuer and the Trustee shall agree in writing to an extension of such period prior to its expiration; provided, however, that the Issuer and the Trustee will be deemed to have agreed to an extension of such period if corrective action is initiated by the Company within such period and is being diligently pursued;
(c) an occurrence of a “Default” as such term is defined in Section 65 of the Mortgage; or
(d) an “Event of Default” under the Indenture.
Section 8.02. Force Majeure. The provisions of Section 8.01(b) hereof are subject to the following limitations: if by reason of acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders of any kind of the government of the United States or of the State of Montana or any department, agency, political subdivision, court or official of any of them, or any civil or military authority; insurrections; riots or other untoward conduct; epidemics; landslides; lightning; earthquakes; volcanoes; fires; hurricanes; tornadoes; storms; floods; washouts; droughts; arrests; restraint of government and people; civil disturbances; explosions; breakage or accident to machinery; partial or entire failure of utilities; or any cause
or event not reasonably within the control of the Company, the Company is unable in whole or in part to carry out any one or more of its agreements or obligations contained herein, other than its obligations under Sections 4.04, 5.01, 5.03, 5.04, 5.05 and 6.01 hereof and on the First Mortgage Bonds, the Company shall not be deemed in default by reason of not carrying out said agreement or agreements or performing said obligation or obligations during the continuance of such inability. The Company shall make reasonable efforts to remedy with all reasonable dispatch the cause or causes preventing it from carrying out its agreements and obligations; provided, that the settlement of strikes, lockouts and other industrial disturbances shall be entirely within the discretion of the Company, and the Company shall not be required to make settlement of strikes, lockouts and other industrial disturbances by acceding to the demands of the opposing party or parties when such course is in the judgment of the Company unfavorable to the Company.
Section 8.03. Remedies. (a) Upon the occurrence and continuance of any Event of Default described in clause (c) of Section 8.01 hereof, the Trustee, as the holder of the First Mortgage Bonds, shall, subject to the provisions of the Indenture, have the rights provided in the Mortgage.
(b) Upon the occurrence and continuance of any Event of Default, the Trustee, as assignee of the Issuer may take, or cause to be taken, any action at law or in equity as may appear necessary or desirable to collect any payments then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Company hereunder and under the Bond Delivery Agreement and the First Mortgage Bonds.
(c) Any waiver of any “Event of Default” under the Indenture and a rescission and annulment of its consequences shall constitute a waiver of any corresponding Event of Default under this Loan Agreement and a rescission and annulment of the consequences thereof.
(d) Any amounts collected from the Company pursuant to this Section 8.03 shall be applied in accordance with the Indenture. No action taken pursuant to this Section 8.03 shall relieve the Company from the Company’s obligations pursuant to Section 4.04 hereof.
Section 8.04. No Remedy Exclusive. No remedy conferred upon or reserved to the Issuer hereby is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Issuer to exercise any remedy reserved to it in this Article VIII, it shall not be necessary to give any notice, other than such notice as may be, herein expressly required. Such rights and remedies as are given the Issuer hereunder shall also extend to the Trustee. The Trustee and the Owners, subject to the provisions of the Indenture, shall be entitled to the benefit of all covenants and agreements herein contained.
Section 8.05. Reimbursement of Attorneys’ Fees. If the Company shall default under any of the provisions hereof and the Issuer or the Trustee shall employ attorneys or incur other reasonable and proper expenses for the collection of payments due hereunder or on the First
Mortgage Bonds or for the enforcement of performance or observance of any obligation or agreement on the part of the Company contained herein, the Company will on demand therefor reimburse the Issuer or the Trustee, as the case may be, for the reasonable fees of such attorneys and such other reasonable expenses so incurred.
Section 8.06. Waiver of Breach. In the event any obligation created hereby shall be breached by either of the parties hereto and such breach shall thereafter be waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. In view of the assignment of certain of the Issuer’s rights and interests hereunder to the Trustee, the Issuer shall have no power to waive any default hereunder by the Company in respect of such rights and interests without the consent of the Trustee and the Trustee may exercise any of the rights of the Issuer hereunder.
Section 8.07. No Liability of Issuer. The Bonds are issued under and pursuant to the Act and shall be limited obligations of the Issuer payable solely out of the Receipts and Revenues of the Issuer from the Loan Agreement or other moneys pledged to secure the Bonds. No holder of any Bond has the right to compel any exercise of the taxing power of the Issuer to pay the Bonds or the interest or premium, if any, thereon, and the Bonds shall not constitute an indebtedness of the Issuer or a loan of credit thereof within the meaning of any constitutional or statutory provisions.
Article IX
Redemption or Purchase of Bonds
Section 9.01. Redemption of Bonds. The Issuer shall take, or cause to be taken, the actions required by the Indenture to discharge the lien thereof through the redemption, or provision for payment or redemption, of all Bonds then Outstanding, or to effect the redemption, or provision for payment or redemption, of less than all the Bonds then Outstanding, upon receipt by the Issuer and the Trustee from the Company of a notice designating the principal amount and maturity of the Bonds to be redeemed, or for the payment or redemption of which provision is to be made, and, in the case of redemption of Bonds, or provision therefor, specifying the date of redemption, which shall not be less than thirty-five (35) days from the date such notice is given, the applicable provision of the Indenture and that all conditions precedent to the Company’s right or obligation to direct the redemption or the provision for payment or redemption of the Bonds contained in the Indenture have been complied with. Except in the case of a redemption pursuant to Section 3.01(b) of the Indenture, such notice (unless otherwise stated therein) shall be revocable by the Company at any time prior to the time at which the Bonds to be redeemed, or for the payment or redemption of which provision is to be made, are first deemed to be paid in accordance with Article VII of the Indenture. The Company shall furnish any moneys required by the Indenture to be deposited with the Trustee or otherwise paid by the Issuer in connection with any of the foregoing purposes including moneys for payment of any premium on the Bonds which is not otherwise provided for.
Section 9.02. Purchase of Bonds. The Company may at any time, and from time to time, furnish moneys to the Trustee accompanied by a notice directing such moneys to be applied to
the purchase of Bonds in accordance with the provisions of the Indenture delivered pursuant to the Indenture, which Bonds shall, at the direction of the Company, be delivered in accordance with Section 3.02(b) of the Indenture.
Section 9.03. Compliance with the Indenture. Anything in this Loan Agreement to the contrary notwithstanding, the Issuer and the Company shall take all actions required by this Loan Agreement and the Indenture in order to comply with Section 3.01 of the Indenture.
Article X
Miscellaneous
Section 10.01. Term of Loan Agreement. This Loan Agreement shall remain in full force and effect from the date hereof until the right, title and interest of the Trustee in and to the Trust Estate shall have ceased, terminated and become void in accordance with Article VII of the Indenture and until all payments required under this Loan Agreement shall have been made. Any moneys remaining in the Bond Fund after the right, title and interest of the Trustee in and to the Trust Estate shall have ceased, terminated and become void shall be paid to the Company.
Section 10.02. Notices. Except as otherwise provided in this Loan Agreement, all notices, certificates, requests, requisitions and other communications hereunder shall be in writing and shall be sufficiently given and shall be deemed given when, subject to Section 12.09 of the Indenture, given by Electronic Means or when mailed by first-class mail, postage prepaid, addressed as follows: if to the Issuer, at City Hall, Forsyth, Montana 59327, Attention: Mayor; if to the Company, at 3010 West 69th Street, Sioux Falls, South Dakota 57108, Attention: Treasurer; and if to the Trustee at such address as shall be designated in the Indenture. A copy of each notice, certificate, request or other communication given hereunder to the Issuer, the Company or the Trustee shall also be given to the others. Any of the foregoing may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent. To the extent permitted by Section 12.09 of the Indenture, all communications required hereunder may be given and delivered by Electronic Means.
Section 10.03. Parties in Interest. This Loan Agreement shall inure to the benefit of and shall be binding upon the Issuer, the Company and their respective successors and assigns, and no other person, firm or corporation (other than the Trustee and its successors under the Indenture) shall have any right, remedy or claim under or by reason of this Loan Agreement; provided, however, that neither the Issuer, the State of Montana, or any political subdivision thereof shall in any event be liable for the payment of the principal of, or premium, if any, or interest on, the Bonds or for the performance of any pledge, mortgage, obligation or agreement created by or arising out of the Loan Agreement or the issuance of the Bonds; and provided, further, that neither the Bonds nor any obligation of the Issuer created by or arising under this Loan Agreement shall constitute an indebtedness or loan of credit of the Issuer, the State of Montana or any political subdivision thereof within the meaning of any constitutional or statutory provisions whatsoever, but shall be limited obligations of the Issuer payable solely out
of the revenues derived from the First Mortgage Bonds or this Loan Agreement, or from the sale of the Bonds, or income earned on invested funds as provided herein and in the Indenture.
Section 10.04. Amendments. This Loan Agreement may be amended only by written agreement of the parties hereto, subject to the limitations set forth herein and in the Indenture; provided, however, that no amendment of this Loan Agreement which affects the Trustee’s rights, duties or immunities hereunder, under the Indenture or under the Bond Delivery Agreement or otherwise shall be made without the prior written consent of the Trustee.
Section 10.05. Counterparts. This Loan Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Loan Agreement.
Section 10.06. Severability. In case any one or more provisions of this Loan Agreement shall, for any reason, be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions hereof, and this Loan Agreement shall be construed and enforced as if such illegal or invalid provisions had not been contained herein.
Section 10.07. Governing Law. The laws of the State of Montana shall govern the construction and enforcement of this Loan Agreement.
In Witness Whereof, the parties hereto have caused this Loan Agreement to be duly executed as of the day and year first above written.
City of Forsyth, Rosebud County, Montana
By /s/ Dennis Kopitzke
Mayor
Attest:
/s/ Sandra Donley
City Clerk
NorthWestern Corporation
By /s/ Emilie Ng
Treasurer
Exhibit A
Colstrip Units Nos. 3 and 4 Pollution Control Facilities
1. Pollution Control Equipment
Scrubber System
The air pollution control facilities employed on Units #3 and #4 consist of a complete scrubber system, including duct work, plenums, scrubber vessels, reheaters and induced draft fans, together with infrastructures, monitoring and electrical controls and instrumentation therefore, for the purpose of removing the sulfur dioxide (SO2) and particulate matter from the flue gas. The scrubber system also includes a scrubber maintenance facility, including a machine shop and laboratory dedicated to the scrubber system and an environment monitoring laboratory for the pollution control facilities. The scrubber system utilizes the Wet Venturi Principle and consists of eight modules for each unit through which the steam generator gases from the burned coal must pass.
The gases in the scrubber are contacted with finely atomized scrubber slurry. Within the stated performance of the system, fly ash particulates are removed by the slurry droplets. The sulfur dioxide reacts with the alkali contained in the slurry which results from the mixing of water, fly ash particulates, hydrated high calcium lime and hydrated dolomitic lime. A major portion of the sulfur dioxide is converted to solid sulfate compounds which are retained in the scrubber liquid and can, therefore, be piped to and deposited in an ash pond together with the particulate.
After the flue gas passes through the venturi section, absorption sprays and wash trays, it is processed through a demister which removes any entrained slurry and is then reheated and discharged through the stack.
The slurry system in the Units #3 and #4 scrubber system consists of recycle tanks, regenerators, agitators, pumps and pipelines. The slurry from the Units #3 and #4 scrubber system is transported to an effluent holding pond and involves the use of effluent holding tanks agitators, pumps and pipelines.
Lime Storage
The sole purpose of the lime system is to supply the lime slurry requirements of the scrubber regeneration system. There is one lime system that serves the sixteen scrubbers for Units #3 and #4. Major components of the system include four slakers, in which calcined high calcium lime is reacted with water to produce a hydrated lime slurry, slurry transfer tanks, where the slurry is diluted with water, slurry feed storage tanks, where the slurry will be held for use by the regenerators as needed, and agitators.
Scrubber Sludge Disposal
Effluent slurry is pumped from the plant to the sludge disposal pond located approximately three miles southeast of the plant. The suspended solids settle to the pond bottom and the clear water is pumped back to the plant.
There are two phases in the development of this pond. The first phase requires the construction of one dam 70 feet high and 400 feet in length. The capacity of Phase 1 will be 8000 acre-feet and lasted approximately 13.5 years.
The development of the second phase will require that the original dam be raised to 130 feet in height and increased to a length of 3,000 feet. A saddle dam was also added. The saddle dam varies in height with a maximum height of 50 feet and a total length of 3,300 feet. The capacity of the second phase will be an additional 8,900 acre-feet and it has sufficient capacity to disposal of scrubber sludge to at least year 2045. The construction of the second phase is not included in cost reported at this time.
The sludge disposal pond design takes into account a permit requirement for minimum seepage, by providing low permeability plastic concrete filled trenches around the periphery of the pond constructed during the course of Phase 1 work.
Coal Dust Control System
The coal dust control system is designed to collect, store and treat coal dust resulting from mining, crushing, handling and storing coal in the course of normal Units #3 and #4 operations. To control coal dust air pollution the points where coal is transferred between conveyors or placed in coal piles have been enclosed. The coal transfer stations between conveyors are enclosed with steel framed structures with metal siding. The structures are equipped with vacuum filtration systems, consisting of ducts, blowers, dust removal filters and associated equipment, to remove coal dust from exhaust air from the structures, and are also equipped with mechanical dust collectors. The mainline 45,000 ton coal storage pile is enclosed with a 340' long A-frame precast panel concrete structure designed to contain coal dust, thereby allowing its removal and treatment.
Cooling Tower Drift Containment Control Facility
Operation of the cooling towers produces exhaust air emissions containing circulating water, particulates and other pollutants generally known as cooling tower drift. To control release of these air pollutants, the cooling towers are provided with high efficiency drift eliminators, located at the top of the cooling tower structures, which remove drift from the cooling tower exhaust air.
2. Solid Waste Disposal
Bottom Ash Disposal
The function of the bottom ash disposal system is to remove accumulations of furnace bottom ash, pulverizer pyrites, economizer ash, and air preheater fly ash by means of a water-ash slurry to a disposal pond located approximately 2,000 feet southeast of the plant site. The system consists generally of three sets of fly ash hoppers (economizer, air heater, and flue gas duct hoppers), pyrite hoppers, the bottom ash hopper, an 18,000 gallon transfer tank, a settling pond, a clear water pond and various pumps, and pipelines.
Clinker grinders are used to grind the bottom ash which is then mixed with water and sluiced to the ash transfer tank.
The economizer ash collected in economizer hoppers falls by gravity to the ash transfer tank.
The pyrites are collected in local tanks and sluiced to the ash transfer tank.
Ash collected in the flue gas duct hoppers and air preheater hoppers is sluiced to the ash transfer tank.
These ashes are pumped from the ash transfer tank to the bottom ash settling pond. The settling pond was decommissioned and removed from service in 2019. It has been subsequently replaced with a new concrete basin. All other components of the bottom ash disposal system remain in operation. Reclaimed and overflow water is recirculated in a closed loop from the bottom ash concrete basin to the plant where it is redistributed to the various sections of the bottom ash disposal system.
The solid waste disposal facilities for purposes of the issuance of the Notes include only so much of the bottom ash disposal system as is external to the plant building and include piping from the building to the settling pond, the pond itself, return water pumps and lines, a clear water pond and piping back to the plant building.
3. Water Pollution Control
North Plant Sediment Pond
The north plant sediment pond is designed to collect and store the storm runoff from the general north plant area. These waters are retrained in the pond, allowing natural evaporation to desiccate the pond. This prevents high quantities of suspended solids from being discharged to Armells Creek or other state surface waters.
North Plant Area Drainage System
The north plant area drainage system is designed to collect and store storm runoff from the water treatment building, fuel oil handling area and the cooling tower area in the north plant area drain pond. The pond also serves as a storage facility for one cooling tower basin drain, cooling tower overflow, water treatment filter backwash, and for the cooling tower blowdown water not used in the flue gas scrubbing process. These waters are potentially contaminated with oil and high suspended and dissolved solids, and this system stores these discharges preventing any discharge to Armells Creek or other state surface waters. The north plant area drainage system consists of collection basins, piping, concrete culverts, yard drains, manholes and special yard gradings (berms) which route these discharges to the north plant area sump and north plant area drain pond. The north plant area drain pond incorporates a hypalon liner to comply with a permit requirement for minimum seepage. The oil separator section of the sump receives oily surface collection drains. The oil and water are separated. The oil from the sump is then trucked away for disposal.
The water discharges are either pumped to the scrubber effluent holding pond via a 6" diameter pipeline, 19,000 feet in length for evaporation, to the circulating water system, or to the plant oily waste sump as appropriate. Each discharge arrangement has its own set of sump pumps. The pumps and piping system which discharge to the plant oily waste sump are not included in the costs of the north plant area drainage system, nor is the circulating water system. The waters recovered are excess to any plant requirements and recovery of the waters does not provide any economic benefit to the plant.
Chemical and Oily Waste System
The chemical and oily waste system is designed to collect, store, treat and dispose of chemical and oily wastes resulting from the normal operation of Units #3 and #4. This system consists of drains and pipes, oil separators, chemical waste sumps, chemical waste neutralizing tanks, neutralizing chemical storage tanks, chemical inspection equipment, and associated mechanical and electrical control equipment.
The chemical waste drainage system includes drains and neutralization tanks for collection and treatment of chemical waste. Chemical waste drains are located throughout Units #3 and #4 and are used to collect and transfer chemical waste to holding sumps and neutralization tanks. The neutralization equipment includes chemical storage and injection equipment as well as controls and instrumentation.
The oily waste drainage system is made up of a network of drains which collect oily waste from throughout Units #3 and #4, and dispose of the wastes in the Units #3 and #4 main water-oil sump. Oil separation chambers in the sump allow for oil removal. The treated water is monitored for trace oil levels and released. After separation, the waste oil is removed by a contractor to an offsite disposal area.
Cooling Tower Blowdown System
The cooling tower blowdown system consists of a 6" pipeline from the cooling tower to the waste disposal pond where the blowdown is treated by settlement and evaporation in accordance with water pollution control requirements.
Groundwater Monitoring Wells
Groundwater monitoring wells have been installed around the various ponds associated with the plant operation. These ponds include the scrubber effluent holding pond, the scrubber drain pond, the scrubber wash tray pond, the bottom ash concrete basin, and the north plant area effluent pond. These groundwater monitoring wells provide the ability through sampling to detect and quantify accidental discharges from the above mentioned plant storage and waste ponds. This is necessary to show compliance with State Groundwater Standards and with permit requirements for minimum seepage.
BOND DELIVERY AGREEMENT
BETWEEN
NORTHWESTERN CORPORATION
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
As TRUSTEE
Dated as of June 1, 2023
City of Forsyth, Rosebud County, Montana,
Pollution Control Revenue Refunding Bonds (Northwestern Corporation Colstrip Project)
Series 2023
THIS AGREEMENT, made and entered into as of June 29, 2023 (the “Agreement”), by and between NorthWestern Corporation, a corporation organized and existing under the laws of the State of Delaware (the “Company”), and U.S. Bank Trust Company, National Association, a national banking association, as trustee (the “Trustee”) under the Indenture of Trust, dated as of June 1, 2023 (the “Indenture”), from the City of Forsyth, Rosebud County, Montana, a municipal corporation and political subdivision organized and existing under the constitution and laws of the State of Montana (the “Issuer”), to the Trustee, under which the Issuer’s Pollution Control Revenue Refunding Bonds (Northwestern Corporation Colstrip Project) Series 2023 (the “Bonds”) are authorized for issuance;
WITNESSETH:
WHEREAS, the Issuer intends to issue the Bonds in an aggregate principal amount of $144,660,000; and
WHEREAS, the Bonds are to be issued under and pursuant to the Indenture; and
WHEREAS, pursuant to a Loan Agreement, dated as of June 1, 2023 (the “Loan Agreement”), between the Company and the Issuer, the proceeds to be derived from the issuance of the Bonds are to be loaned to the Company to be applied to refund a portion of the outstanding bonds of the Issuer, which were issued to refinance The Montana Power Company’s (predecessor in interest to the Company) share of the cost of the construction of certain pollution control facilities for the benefit of The Montana Power Company, and the Company is obligated to make certain payments to repay such loan; and
WHEREAS, the Company is desirous that the Issuer issue the Bonds and apply the proceeds as aforesaid;
NOW, THEREFORE, in consideration of these premises and to evidence and to provide for the payment of certain obligations of the Company under the Loan Agreement, the Company does hereby covenant and agree with the Trustee as follows:
ARTICLE 1
DEFINITIONS
The terms defined in Article I of the Indenture shall, for all purposes of this Agreement, have the meanings specified therein, unless the context clearly requires otherwise.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 2.1. The Company hereby represents and warrants that:
(a)it is a corporation organized and existing under the laws of the State of Delaware, is not in violation of any provision of its articles of incorporation, as amended, or its by-laws, has the power to enter into this Agreement and has duly authorized the execution and delivery of this Agreement by proper corporate action; and neither this
Agreement nor the obligations on its part herein contained contravene or constitute a default under any agreement, instrument or indenture or any provision of its articles of incorporation, as amended, or its by-laws or any requirement of law; and
(a)the First Mortgage Bonds are duly and validly authorized, authenticated, issued and delivered; constitute valid and binding obligations of the Company, entitled to the benefits as provided by the Mortgage; and conform to the requirements set forth in clauses (i) through (iv) of Section 3.1(a) hereof.
ARTICLE 3
DELIVERY OF THE FIRST MORTGAGE BONDS;
RIGHTS AND DUTIES OF THE TRUSTEE
SECTION 3.1.
(a)Delivery and Receipt. Concurrently with the issuance and delivery by the Issuer of the Bonds, the Company has issued and delivered, or caused to be delivered, to the Trustee to hold in trust for the benefit of the Owners of the Bonds, but subject to the terms and conditions of this Agreement, $144,660,000 in principal amount of the First Mortgage Bonds, (i) maturing on the same date as the Bonds, (ii) bearing interest at the same rate and payable at the same times as the Bonds, (iii) containing redemption provisions correlative to Section 3.01 of the Indenture, and (iv) registered in the name of the Trustee or, subject to Section 6.11 of the Indenture, its nominee. The Trustee, for the benefit of the Owners from time to time of the Bonds, hereby acknowledges receipt of the First Mortgage Bonds and accepts the trusts imposed upon it by this Agreement.
(b)Circumstances under which the Company’s Obligation to Pay Discharged. To provide for the payment of the obligations of the Company under Section 4.04 and 9.01 of the Loan Agreement, the Company has delivered the First Mortgage Bonds to the Trustee. The obligation of the Company to make payments with respect to the principal of and interest on the First Mortgage Bonds shall be fully or partially, as the case may be, satisfied and discharged to the extent that, at the time that any such payment shall be due, there shall be in the Bond Fund sufficient available funds to fully or partially pay the then due principal of and interest on the Bonds.
(c)Surrender by Trustee. At the time any of the Bonds cease to be outstanding (other than by reason of the applicability of clause (c) in the definition of Outstanding contained in the Indenture), the Trustee shall surrender to the Mortgage Trustee for cancellation a corresponding principal amount of First Mortgage Bonds.
(d)Non-Payment; Redemption. In the event that, after giving effect to the provisions of Section 3.1(b) hereof, a payment on the First Mortgage Bonds shall have become due and payable and shall not have been fully paid, the Trustee shall forthwith give notice thereof to the Mortgage Trustee specifying the amount of such payment and the amount not paid. In the event that any Bonds are to be redeemed pursuant to Section 3.01 of the Indenture, the Trustee shall, forthwith upon being given notice of such redemption,
give notice thereof to the Mortgage Trustee stating that (i) Bonds are to be redeemed pursuant to Section 3.01 of the Indenture and the principal and amount to be redeemed and the redemption date therefor, (ii) First Mortgage Bonds of like principal amount are to be redeemed on the same date, and (iii) the Trustee, as holder of the First Mortgage Bonds, waives notice of such redemption of the First Mortgage Bonds. Any such notice given by the Trustee shall be signed by its President, a Vice President or a Trust Officer thereof. The Trustee shall incur no liability for failure to give any such notice and such failure shall have no effect on the obligations of the Company, on the Bonds or on the rights of the Trustee or of the Owners of the Bonds.
SECTION 3.2. Rights and Duties of Trustee. The First Mortgage Bonds have been delivered by the Company, and accepted by the Trustee, for the benefit of the Owners from time to time of the Bonds, upon and subject to the following terms and conditions:
(a)Trustee to Exercise Rights of First Mortgage Bondholders. The Trustee shall, in the manner and upon the terms and conditions provided in the Indenture, including, without limitation, Section 6.11 thereof, and in the manner provided herein, be entitled to exercise all of the rights and enforce all of the remedies of an owner of the Company’s first mortgage bonds, including, without limitation, the right to receive payments of the principal of and interest on the First Mortgage Bonds.
(b)Voting of First Mortgage Bonds. The Trustee shall, as the holder of the First Mortgage Bonds, attend such meeting or meetings of bondholders under the Mortgage or, at its option, deliver its proxy in connection therewith, as related to matters with respect to which it is entitled to vote or consent. So long as no Event of Default under the Indenture shall have occurred and be continuing, either at any such meeting or meetings, or otherwise when the consent of the holders of the Company’s First Mortgage Bonds is sought without a meeting, the Trustee shall vote as the holder of the First Mortgage Bonds, or shall consent with respect thereto (a) in favor of any amendment or modification of the Mortgage proposed by the Company of substantially the same tenor as those set forth in Exhibit A hereto, (b) in favor of any amendments to or modifications of the Mortgage of substantially the same tenor as those set forth in Section 11.02 of the Indenture for amendments to the Indenture as if Section 11.02 of the Indenture were incorporated, mutatis mutandis, in this Agreement; provided, however, that, for purposes of this Agreement, all references in Section 11.02 to the Issuer shall be deemed to refer to the Company and with other correlative changes, and (c) with respect to any other amendments to, modifications of, or other matters relating to, the Mortgage, proportionately with the vote or consent of the holders of all other first mortgage bonds of the Company then outstanding under the Mortgage the holders of which are eligible to vote or consent, as indicated in a Bondholder’s Certificate (as hereinafter defined) delivered to the Trustee; provided, however, that the Trustee shall not vote as such holder in favor of, or give its consent to, any amendment or modification of the Mortgage which, if it were an amendment or modification of the Indenture, would require the approval of the Owners of the Bonds, without the prior consent and approval, obtained in the manner prescribed in Section 11.03 of the Indenture, of Owners of Bonds which would be required under Section 11.03 of the Indenture for such an amendment or modification of the Indenture as well as such other approvals and conditions as are stated in Section 11.03 of the Indenture. “Bondholder’s
Certificate” means a certificate signed by the temporary chairman, the temporary secretary, the permanent chairman, the permanent secretary, or an inspector of votes at any meeting or meetings of bondholders under the Mortgage, or by the Mortgage Trustee in the case of consents of such bondholders which are sought without a meeting, which states what the signer thereof reasonably believes will be the proportionate votes or consents of the holders of all first mortgage bonds (other than the First Mortgage Bonds) outstanding under the Mortgage and counted for the purposes of determining whether such bondholders have approved or consented to the matter put before them. Any action taken by the Trustee in accordance with the provisions of this Section 3.2(b) shall be binding upon the Issuer and the Owners of Bonds.
(c)No Transfer of First Mortgage Bonds; Exception. Except as required to effect an assignment to a successor trustee, the Trustee shall not sell, assign or transfer First Mortgage Bonds held by it. In order to carry out the requirements of this Section 3.2 (c), the Company may take such actions as it shall deem to be desirable, including the placing of a legend on each First Mortgage Bond in substantially the following form:
“This Bond is not transferable except as required to effect transfer to any successor trustee under the Indenture of Trust, dated as of June 1, 2023, as it may be amended and supplemented, between the City of Forsyth, Rosebud County, Montana, and U.S. Bank Trust Company, National Association, as Trustee.”,
and the issuance of stop transfer instructions to the Mortgage Trustee and any transfer agent under the Mortgage.
(d)First Mortgage Bonds in Temporary Form. The First Mortgage Bonds have been delivered hereunder in temporary form. Any transfer or exchange of First Mortgage Bonds will be made with bonds in temporary form.
(e)Disposition of Proceeds Derived from First Mortgage Bonds. The Trustee, upon receiving or collecting moneys on the First Mortgage Bonds, whether upon the payment of interest on, or upon the redemption or maturity of, the First Mortgage Bonds or otherwise, shall deposit such moneys in the Bond Fund of the Indenture.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1. Term. This Agreement shall remain in full force and effect until the entire principal of and interest on the Bonds shall have been paid or provided for.
SECTION 4.2. Further Company Acts. The Company shall do such further lawful acts and things, and execute and deliver such additional conveyances, assignments, assurances, agreements, financing statements and instruments, as the Trustee may at any time reasonably request in connection with the administration and enforcement of this Agreement or relative to the First Mortgage Bonds or any part thereof, or in order to better assign, assure and
confirm to the Trustee the rights, remedies, powers and privileges of the Trustee hereunder, or for carrying out the intentions and facilitating the performance of the terms of this Agreement.
SECTION 4.3. Parties in Interest. This Agreement is entered into by the Company for the benefit of the Trustee and any successor trustee or successor trustees and their respective successors and assigns under the Indenture and the Owners from time to time of the Bonds outstanding, all of whom shall be entitled to enforce performance and observance of this Agreement to the same extent as if they were parties signatory hereto.
SECTION 4.4. Company to Pay Costs and Expenses. The Company shall pay all reasonable fees, costs and expenses of the Trustee in connection with the performance and enforcement of this Agreement for which the Trustee has not otherwise received reimbursement.
SECTION 4.5. Amendments. This Agreement may be amended or supplemented in the same manner and upon the same conditions as set forth in Section 11.03 of the Indenture for amendments to the Indenture as if Section 11.03 of the Indenture were incorporated, mutatis mutandis, in this Agreement; provided, however, that, for purposes of this Agreement, all references in Section 11.03 of the Indenture to the Issuer shall be deemed to refer to the Company and all references to the Company shall be deemed to refer to the Issuer.
SECTION 4.6. Notices. All notices and other communications hereunder shall be in writing and shall be sufficiently given and shall be deemed given when mailed by registered mail, postage prepaid, addressed as follows: if to the Company, 3010 West 69th Street, Sioux Falls, South Dakota 57108; if to the Trustee, at such address as shall be designated by it in the Indenture. Any of the foregoing may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent.
SECTION 4.7. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Agreement.
SECTION 4.8. Severability. In case any one or more provisions of this Agreement shall, for any reason, be held illegal or invalid, such illegality or invalidity shall not affect any other provisions hereof, and this Agreement shall be construed and enforced as if such illegal or invalid provisions had not been contained herein.
SECTION 4.9. Governing Law. The laws of the State of Montana shall govern the construction and enforcement of this Agreement.
[signatures on next page]
IN WITNESS WHEREOF, the Company and the Trustee have caused this Agreement to be executed in their respective corporate names, all as of the date first above written.
NORTHWESTERN CORPORATION
By /s/ Crystal D. Lail
Name: Crystal D. Lail
Title: Vice President and Chief Financial Officer
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By /s/ Barndon Elzinga
Name: Brandon Elzinga
Title: Vice President
[Signature Page to Bond Delivery Agreement]
EXHIBIT A
MODIFICATIONS TO NORTHWESTERN CORPORATION’S MORTGAGE
1. The modification of the last paragraph of Section 2 of the Company’s Mortgage to read as follows:
“The term ‘Daily Newspaper’ shall mean a newspaper usually published at least five days a week”
2. The modification of the first paragraph of Section 3 of the Company’s Mortgage to read as follows:
“The term ‘Resolution’ shall mean a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company, or by any duly authorized committee consisting of one or more persons, who need not be members of the Board of Directors, and to be in full force and effect on the date certified.”
3. The modification of the third paragraph of Section 3 of the Company’s Mortgage to read as follows:
“The term “Officer’s Certificate” shall mean a certificate signed by the Chief Executive Officer, the President, a Vice-President, the Treasurer, an Assistant Treasurer of the Company or any other duly authorized person.”
4. The modification of the Company’s Mortgage to replace the phrase “Officers’ Certificate” with the phrase “Officer’s Certificate” wherever the phrase “Officers’ Certificate” appears in the Mortgage.
5. The modification of the fourth paragraph of Section 3 of the Company’s Mortgage to delete the phrase “appointed by the Board of Directors of the Company” from the third and fourth lines thereof; to add in its place the phrase, “whose appointment shall be evidenced by a Resolution”; and to add the following phrase in the eighth line thereof immediately after the word “hereof”:
“or clause (b) of subdivision (2) of Section 60 (II) hereof”
6. The modification of the sixth paragraph of Section 3 of the Company’s Mortgage to delete the phrase “appointed by the Board of Directors of the Company” from the third and fourth lines thereof and to add in its place the phrase, “whose appointment shall be evidenced by a Resolution”.
7. The modification of the seventh paragraph of Section 3 of the Company’s Mortgage to delete the phrase “appointed by the Board of Directors of the Company” from the third line thereof and to add in its place the phrase, “whose appointment shall be evidenced by a Resolution”.
8. The modification of Section 4(I) of the Company’s Mortgage to read as follows:
Section 4. (I) The term “Property Additions” shall mean plants, lines, pipes, mains, cables, machinery, boilers, transmission lines, Space Satellites (as hereinafter defined), pipe lines, distribution systems, service systems and supply systems, Fuel Transportation Facilities (as hereinafter defined), and other property, real or personal, and improvements, extensions, additions, renewals or replacements, acquired by the Company by purchase, consolidation, merger, donation, construction, erection or in any other way whatsoever, subsequent to July 31, 1945, or in the process of construction or erection insofar as actually constructed or erected subsequent to July 31, 1945, and used or useful or to be used in or in connection with the business of generating, manufacturing, developing, extracting, producing, transmitting, transporting, distributing, storing or supplying energy or fuel in any form, including, without limitation, electricity or gas for light, heat, power, refrigeration or other purposes, or of generating, manufacturing, producing, transmitting, transporting, distributing or supplying water for domestic or public use or consumption for drinking, power, heat or other purposes or steam for power, heat or other purposes. The term “Property Additions” shall not, however, include (1) any shares of stock, bonds, notes or other obligations or other securities or contracts, leases, or operating agreements, bills, notes, accounts receivable or choses in action, or (2) except as herein otherwise specifically provided, going value, good will, franchises or governmental permits or licenses granted to or acquired by the Company, as such, separate and distinct from the property operated thereunder or in connection therewith or incident thereto, or (3) any merchandise, equipment, apparatus, materials or supplies held for the purposes of sale or other disposition in the usual course of business; fuel, oil or similar materials or supplies consumable in the operation of any of the properties of the Company; or aircraft, tractors, rolling stock, trolley coaches, buses, motor coaches, automobiles, motor trucks or other vehicles (other than Fuel Transportation Facilities and Space Satellites), or materials and supplies held for the purposes of repairing or replacing (in whole or part) any of the same; or timber, minerals, mineral rights or royalties or Gas and oil Production Property, or (4) any property (other than “Space Satellites”) which is located outside the limits of the United States of America or its coastal waters or outside the limits of the Dominion of Canada or its coastal waters as the same may be now or hereafter constituted, unless such property shall be connected by transmission, distribution, pipe or other line owned by the Company with a system, line, plant or power house owned or operated by the company which is located within such limits or shall be auxiliary to property so located or connected, or (5) any property, the cost of acquiring, making or constructing which is chargeable under accepted principles of accounting to operating expenses.
The term “Fuel Transportation Facilities” shall mean railroad cars, and other railroad transportation equipment, tankers, tow boats, barges and all other kinds and types of cargo carrying vessels, used or to be used primarily for the transportation of coal, oil or other fuel.
The term “Space Satellites” shall mean any form of space satellites, space stations and other analogous facilities whether or not in the earth’s atmosphere.
The term “Gas and oil Production Property” shall mean all leases, consolidated leases and operating agreements, fee lands and other mineral interests, gas and oil rights, wells, field compressors, equipment, extraction and absorption plants and other properties and rights whether producing or non-producing, used or useful primarily and principally for the production and gathering of natural gas up to the point of connection with any gas transmission or distribution system or used or useful primarily and principally for the production, gathering or storage of oil or condensate.
9. The modification of Section 6(e) of the Company’s Mortgage to read as follows:
“(e) easements, ground leases, restrictions, exceptions or reservations in any property and/or rights of way of the Company for the purpose of roads, pipe lines, transmission lines, transportation lines, distribution lines, communication lines, railways, removal of coal or other minerals or timber, and other like purposes, or for the joint or common use of real property, rights of way, facilities and/or equipment, and defects, irregularities and deficiencies in titles of any property and/or rights of way which do not materially impair the use of such property and/or rights of way for the purposes for which such property and/or rights of way are held by the Company;”
10. The modification of Section 7(A) of the Company’s Mortgage to read as follows:
“(A) the Adjusted Net Earnings of the Company for a period of twelve (12) consecutive calendar months within the eighteen (18) calendar months immediately preceding the first day of the month in which the application for the authentication and delivery under this Indenture of Bonds then applied for is made, specifying:”
11. The modification of Section 7(A)(10) of the Company’s Mortgage to replace the phrase “fifteen per centum (15%)” with the phrase “twenty per centum (20%)” in the ninth line thereof.
12. The modification of subdivisions (i) through (iii) of Section 7(B) of the Company’s Mortgage to read as follows:
“(i) all bonds outstanding hereunder at the date of such certificate, except any for the payment of which the bonds applied for are to be issued; provided that, if any such series of outstanding bonds bears interest at varying rates, then the interest on such series of bonds shall be computed at the average annual rate in effect for such series during the period of twelve (12) consecutive calendar months (or any portion thereof in which bonds of such series are Outstanding) being used for the calculation of Adjusted Net Earnings; and if such outstanding bonds have been issued after the end of such twelve (12) consecutive calendar months, then computed at the initial rate upon issuance;
(ii) all bonds then applied for in pending applications, including the application in connection with which such certificate is made, computed at the initial rate upon issuance;
(iii) all Qualified Lien Bonds which will be outstanding immediately after the authentication of the bonds then applied for in pending applications, including the application in connection with which such certificate is made; provided that, if any Qualified Lien Bonds bear interest at varying rates, then the interest on such Qualified Lien Bonds shall be computed at the average annual rate in effect for such Qualified Lien Bonds during the period of twelve (12) consecutive calendar months (or any portion thereof in which such Qualified Lien Bonds are Outstanding) being used for the calculation of Adjusted Net Earnings; and if such Qualified Lien Bonds have been issued after the end of such last month, then computed at the initial rate upon issuance;”
13. The addition of a new subdivision (e) to Section 8 of the Company’s Mortgage and the redesignation of former subdivision (e) so that subdivisions (e) and (f) should read as follows:
“(e) reserving to the Company the right to create fully registered bonds that may be registered as to the payment of principal to one holder and to the payment of interest to another holder; and/or
(f) in any other respect expressing or referring to the terms and conditions upon which such bonds are to be issued and/or secured under this Indenture.”
14. The modification of the first and the second sentence of Section 15 of the Company’s Mortgage to read as follows:
“SECTION 15. There may be authenticated and delivered and issued from time to time in lieu of (or in exchange for) any definitive bond or bonds issued or issuable under this Indenture one or more temporary typewritten, printed, lithographed or engraved bonds substantially of the tenor of the bonds hereinbefore described, with or without one or more coupons, and with or without the privilege of registration as to principal only, or as to both principal and interest, and such temporary bond or bonds may be in such denomination or denominations as the Company may determine, as evidenced by a Resolution. Definitive bonds may be in the form of typewritten bonds, fully engraved bonds, lithographed bonds or printed bonds.”
15. The modification of Section 25 of the Company’s Mortgage to read as follows:
“Section 25. Bonds of any one or more series may be authenticated and delivered under the provisions of this Article V upon the basis of Property Additions for a principal amount not exceeding seventy per centum (70%) of the balance of the Cost or of the fair value thereof to the Company (whichever shall be less) after making any deductions and any additions pursuant to Section 4 hereof.”
16. The modification of Section 26 of the Company’s Mortgage to replace the phrase “ten sixths (l0/6ths)” with the phrase “ten sevenths (10/7ths)” in the eleventh line thereof.
17. The modification of the Company’s Mortgage to replace the phrase “sixty per centum (60%)” with the phrase “seventy per centum (70%)” whenever the phrase “sixty per centum (60%)” appears in the Mortgage.
18. The modification of Section 28(7)(b) of the Company’s Mortgage to read as follows:
“(b) that the Company has corporate authority to operate the Property Additions in respect of which such application is made.”
19. The modification of Section 29 of the Company’s Mortgage to delete the paragraph appearing immediately after Section 29(5).
20. The modification in Section 37 of the Company’s Mortgage to read as follows:
“Section 37. That it will keep or cause to be kept all the property subject to the Lien hereof insured against fire to the extent that property of similar character is usually so insured by companies similarly situated and operating like properties, to a reasonable amount, by reputable insurance
companies, any loss, except as to materials and supplies and except as to any particular loss less than the greater of Four Million Dollars ($4,000,000) or two per centum (2%) of the bonds Outstanding hereunder on the date of such particular loss, to be made payable to the Corporate Trustee as the interest of the Corporate Trustee may appear, or to the trustee or other holder of any mortgage or other lien constituting a Qualified Lien or any other lien prior hereto upon property subject to the Lien hereof, if the terms thereof require losses so to be made payable; or that it will, in lieu of or supplementing such insurance in whole or in part, adopt some other method or plan of protection against loss by fire at least equal in protection to the method or plan of protection against loss by fire of companies similarly situated and operating properties subject to similar fire hazards or on which properties an equal primary fire insurance rate has been set by reputable insurance companies, and that if it shall adopt such other method or plan, it will, except as to materials and supplies and except as to any particular loss less than the greater of Four Million Dollars ($4,000,000) or two per centum (2%) of the bonds Outstanding hereunder on the date of such particular loss, pay to the Corporate Trustee on account of any loss sustained by reason of the destruction or damage of such property by fire, an amount of cash equal to such loss less any amounts otherwise paid to the Corporate Trustee, or to the trustee or other holder of any mortgage or other lien constituting a Qualified Lien or any other lien prior hereto upon property subject to the Lien hereof, if the terms thereof require losses so to be paid. Any amounts of cash so required to be paid by the Company pursuant to any such method or plan shall for the purposes of this Indenture be deemed to be proceeds of insurance. In case of the adoption of such other method or plan of protection, the Company shall also furnish to the Corporate Trustee a certificate of an actuary or other qualified person appointed by the Company with respect to the adequacy of such method or plan. There shall be delivered to the Corporate Trustee, on or before October 1 of each year and also whenever the Corporate Trustee shall make request therefor a detailed statement, signed by the Treasurer or an Assistant Treasurer of the Company, of any fire insurance policies then outstanding and in force upon the aforesaid property, or any part thereof, including, or by reference to former statements including, the names of the insurance companies which have issued the policies and the amounts and expiration dates thereof, together with a detailed statement, signed by the Treasurer or an Assistant Treasurer of the Company, of such other method or plan, if any.
All moneys paid to the Corporate Trustee by the company in accordance with this Section or received by the Corporate Trustee as proceeds of any insurance against loss by fire shall, subject to the requirements of any mortgage constituting a Qualified Lien or any other lien prior hereto upon property subject to the Lien hereof, be held by the Corporate Trustee and, subject as aforesaid, shall be paid by it to the Company to reimburse the Company for an equal amount spent in the
rebuilding or renewal of the property destroyed or damaged, upon receipt by the Corporate Trustee of (1) an officer’s certificate requesting such reimbursement, (2) an Engineer’s Certificate stating the amounts so expended and the nature of such rebuilding or renewal and the fair value to the Company of the property rebuilt or renewed and if
(A) within six months prior to the date of acquisition thereof by the Company, such property has been used or operated, by a person or persons other than the Company, in a business similar to that in which it has been or is to be used or operated by the Company, and
(B) the fair value to the Company of such property as set forth in such Engineer’s Certificate is not less than Twenty-five Thousand Dollars ($25,000) and not less than one per centum (1%) of the aggregate principal amount of the bonds at the time outstanding under this Indenture,
the Engineer making such certificate shall be an independent Engineer, and (3) and opinion of Counsel that the property so rebuilt or renewed is subject to the Lien hereof to the same extent as was the property so destroyed or damaged, provided, however, that to the extent that moneys paid by the Corporate Trustee to the Company for reimbursement, as aforesaid, shall represent the proceeds of property that was not Funded Property destroyed or damaged by fire, the property so rebuilt or renewed (for which reimbursement is so made), shall not be deemed to be Funded Property.
Any such money not so applied within eighteen (18) months after its receipt by the Corporate Trustee, or in respect of which notice in writing of intention to apply the same to the work of rebuilding or renewal then in progress and uncompleted shall not have been given to the Corporate Trustee by the Company within such eighteen (18) months, or which the Company shall at any time notify the Corporate Trustee is not to be so applied, shall thereafter be withdrawn, used or applied in the manner, to the extent and for the purposes and subject to the conditions provided in Section 61 hereof.”
21. The elimination of Section 39 of the Company’s Mortgage and any references to said Section 39 wherever they appear in the Mortgage or any indenture supplemental thereto.
22. The elimination of Section 40 of the Company’s Mortgage and any references to said Section 40 wherever they appear in the Mortgage or in any indenture supplemental thereto.
23. Modification of Section 58 of the Company’s Mortgage by deleting the word “and” at the end of subdivision (2), replacing the period at the end of subdivision
(3) with a semicolon, and adding the following subdivision (4) at the end of Section 58 to read as follows:
“and (4) grant, free from the Lien of this Indenture, and effect the subordination of the Lien of this Indenture to, easements, ground leases or rights of way in, upon, over and across the property or rights of way of the Company for the purpose of roads, pipe lines, transmission lines, transportation lines, distribution lines, communication lines, railways, removal of coal or other minerals or timber, and other like purposes, or for the joint or common use of real property, rights of way, facilities and/or equipment; provided that such grant does not materially impair the use of the property or rights of way for the purposes for which such property or rights of way are held by the Company.”
24. Modification of Section 59 of the Company’s Mortgage as follows:
Amending subdivision (1) of Section 59 of the Company’s Mortgage to read as follows:
“Officer’s Certificate describing in reasonable detail the property to be released and requesting such release;”
Amending subdivision(3)(b) and (c) of Section 59 of the Company’s Mortgage to read as follows:
“(b) (i) the fair value and (ii) the Cost (or as to Property Additions constituting Funded Property of which the fair value to the Company at the time the same became Funded Property was less than the cost as determined pursuant to Section 4 hereof, then such fair value in lieu of Cost), in the opinion of the signers, of the property (or securities) to be released; (c) the Cost (or as to Property Additions constituting Funded Property of which the fair value to the Company at the time the same became Funded Property was less than the Cost as determined pursuant to Section 4 hereof, then such fair value in lieu of Cost), in the opinion of the signers, of any portion thereof that is Funded Property;”
Amending the first six lines of subdivision (4) of Section 59 of the Mortgage to read as follows:
“(4) an amount in cash, to be held by the Corporate Trustee as part of the Mortgaged and Pledged Property, equivalent to the amount, if any, by which the Cost (or as to Property Additions constituting Funded Property of which the fair value to the Company at the time the same became Funded Property was less than the Cost as determined pursuant to
Section 4 hereof, then such fair value in lieu of cost) of the property to be released, as specified in the Engineer’s Certificate provided for in subdivision (3) above, exceeds the aggregate of the following items:”
Amending Subdivision 4(b) of Section 59 of the Mortgage to delete the following provision:
“provided, however, that no such application for release may be based in whole or in part upon Property Additions acquired, made or constructed more than five years prior to the last day of the calendar month immediately preceding the date of such application, and”
and to replace the phrase “provided, further” immediately following the above provision with the phrase “provided, however”.
Amending Subdivision 4(c) of Section 59 of the Company’s Mortgage to add the phrase “ten-sevenths (10/7ths) of” before the phrase “the principal amount” in the first line thereof.
25. Modification of Section 60 of the Company’s Mortgage as follows:
Amending the sixteenth line of the first sentence of Section 60 of the Mortgage to replace the phrase “Fifty Thousand Dollars ($50,000).” with the phrase “Four Million Dollars ($4,000,000) or one per centum (1%) in principal amount of the bonds then outstanding hereunder, whichever shall be greater.”
Amending Section 60 of the Mortgage by inserting “(I)” before the word “Unless” in the first line thereof, and by adding the following Subsection(II) at the end of Section 60:
“(II) Unless the Company is in default in the payment of the interest on any bonds then Outstanding hereunder or one or more of the Defaults defined in Section 65 hereof shall have occurred and be continuing, the Company may obtain the release of any of the Mortgaged and Pledged Property that is not Funded Property, except cash then held by the Corporate Trustee (provided, however, that Qualified Lien Bonds deposited with the Corporate Trustee shall not be released or surrendered except as provided in Article IX hereof and obligations secured by purchase money mortgage deposited with the Corporate Trustee shall not be released except as provided in section 61 hereof), and the Corporate Trustee shall release all its right, title and interest in and to the same from the Lien hereof upon application of the Company and receipt by the Corporate Trustee of the following (in lieu of complying with the requirements of Section 59 hereof):
(1) an Officer’s Certificate complying with the requirements of Section 121 hereof and describing in reasonable detail the property to be released and requesting such release, and stating:
(a) that the Company is not default in the payment of interest on any bonds then outstanding hereunder and that no Default has occurred and is continuing;
(b) that the Company has sold, leased, granted an interest in, exchanged, dedicated or disposed of, or intends or has agreed to sell, lease, grant an interest in, exchange, dedicate or dispose of or that a governmental body or agency has exercised a right to order the Company to divest itself of, the property to be released;
(c) that the property to be released is not Funded Property;
(d) that (except in any case where a governmental body or agency has exercised a right to order the Company to divest itself of such property) such release is in the opinion of the signers desirable in the conduct of the business of the Company; and
(e) the amount of cash and/or principal amount of obligations secured by purchase money mortgage received or to be received for any portion of said property sold to any Federal, State, County, Municipal or other governmental bodies or agencies or public or semi-public corporations, districts, or authorities;
(2) an Engineer’s Certificate made and dated not more than ninety (90) days prior to the date of such application, stating:
(a) the fair value, in the opinion of the signers, of the property (or securities) to be released;
(b) that in the opinion of the signers such release will not impair the security under this Indenture in contravention of the provisions hereof; and
(c) that the Company has Property Additions constituting property that is not Funded Property (not including the Property Additions then being released) of a Cost or fair value to the Company (whichever is less) of not less than one dollar ($1) (after making any deductions and any additions pursuant to the provisions of Section 4 hereof);
(3) an Opinion of Counsel complying with the requirements of Section 121 hereof and stating that all conditions precedent provided for in this Indenture relating to the release of the property in question have been complied with; and
(4) in case the Corporate Trustee is requested to release any franchise, an Opinion of Counsel complying with the requirements of Section 121 hereof and stating that in his or their opinion such release will not impair to any material extent the right of the Company to operate any of its remaining properties.”
26. Modification of Section 61 of the Company’s Mortgage to delete the following provision from subsection (1):
“provided, however, that no such withdrawal of cash representing the proceeds of insurance on or the release of property or securities or payment of or on account of obligations secured by purchase money mortgages may be based in whole or in part upon Property Additions acquired, made or constructed more than five years prior to the last day of the calendar month immediately preceding the receipt by the Corporate Trustee of such cash, and”
and to replace the phrase “provided further” immediately following the above provision with the phrase “;provided, however,”
27. Modification of Section 61 of the Company’s Mortgage as follows:
To add the phrase “ten-sevenths (10/7ths) of” after the phrase “equal to” in the second line of subdivision (2).
To add the following language after the phrase “provided, however, that” in the eighth line of subdivision (2):
“cash deposited with the Corporate Trustee pursuant to Section 30 hereof may be withdrawn on the basis of this subdivision (2) only in an amount equal to the principal amount of each such bond or fraction thereof; and provided, further, that”
28. Modification of Section 112 of the Company’s Mortgage to read as follows:
“The holders of
(a) a majority in principal amount of the bonds outstanding hereunder when such meeting is held, or
(b) if the action proposed adversely affects the rights of one or more, but less than all, series of bonds then outstanding, then at least a majority in principal amount of only those bonds so to be adversely affected and outstanding hereunder
must be present at such meeting in person or by proxy in order to constitute a quorum for the transaction of business, less than a quorum, however, having power to adjourn.”
29. Modification of Section 113 of the Company’s Mortgage to amend lines six through thirteen thereof by replacing the phrase
“but only by resolution duly adopted by the affirmative vote of the holders of sixty-six and two-thirds per centum (66 2/3%) or more in principal amount of the bonds Outstanding hereunder, and, if the rights of one or more but less than all, series of bonds then Outstanding are to be affected by action taken at such meeting, then also by affirmative vote of the holders of at least sixty-six and two-thirds per centum (66 2/3%) in principal amount of each series of bonds so to be affected and Outstanding hereunder,”
with the phrase
“but only by resolution duly adopted by the affirmative vote of the holders of a majority in principal amount of the bonds outstanding hereunder, but, if the rights of one or more, but less than all, series of bonds then Outstanding are to be adversely affected by action taken at such meeting, then by affirmative vote of the holders of a majority in principal amount of only those bonds so to be adversely affected and outstanding hereunder,”
30. Modification of Section 116(A) of the Company’s Mortgage to read as follows:
“Section 116. (A)Anything in this Article contained to the contrary notwithstanding, the Corporate Trustee shall receive the written consent (in any number of instruments of similar tenor executed by bondholders or by their attorneys appointed in writing) of the holders of a majority in principal amount of the bonds Outstanding hereunder, but, if the rights of one or more, but less than all, series of bonds then Outstanding are to be adversely affected by action taken pursuant to such consent, then by consent of the holders of a majority in principal amount of only those bonds so to be adversely affected and outstanding hereunder (at the time the last such needed consent is delivered to the Corporate Trust) in lieu of the holding of a meeting pursuant to this Article and in lieu of all action at such a meeting and with the same force and effect as a resolution duly adopted in accordance with the provisions of Section 113 hereof.”
31. Modification of Section 118 of the Company’s Mortgage to replace the phrase “Resolution” with the phrase “Officer’s Certificate” in the seventh line of the first sentence thereof.
32. Modification of Section 119 of the Company’s Mortgage to replace the phrase “six (6) years” with the phrase “two (2) years” in the thirteenth line thereof.
33. Modifications necessary in order to cause there to be excluded from the Mortgaged and Pledged Property and the Lien of the Company's Mortgage at all times, including, without limitation, in the event and following the date that either or both of the Trustees or a receiver or trustee shall enter upon and take possession of the Mortgaged and Pledged Property in the manner provided in Article XIII of the Company's Mortgage by reason of the occurrence of a Default as defined in Section 65 thereof, all of the Company’s right, title and interest, whenever arising or acquired, in, to and under all accounts (as defined in the Uniform Commercial Code as in effect from time to time in the State of New York), all accounts receivable, all payments for goods sold or leased or for services rendered (whether or not they have been earned by performance), all rights in any merchandise or goods which any of the foregoing may represent, all rights, title, security and guaranties with respect to any or all of the foregoing, and all proceeds (as defined in the Uniform Commercial Code as in effect from time to time in the State of New York) of, and all collections from or with respect to, any or all of the foregoing.
NORTHWESTERN CORPORATION
TO
THE BANK OF NEW YORK MELLON
(formerly The Bank of New York)
AND
MARY MISELIS
As Trustees under Mortgage and
Deed of Trust, dated as of
October 1, 1945, with NorthWestern Corporation
FORTY-FOURTH SUPPLEMENTAL INDENTURE
Providing, among other things,
First Mortgage Bonds, 3.875% Series due July 1, 2028
Dated as of June 1, 2023
FORTY-FOURTH SUPPLEMENTAL INDENTURE
THIS FORTY-FOURTH SUPPLEMENTAL INDENTURE, dated as of June 1, 2023, between NORTHWESTERN CORPORATION, a corporation duly incorporated and existing under the laws of the State of Delaware (hereinafter called the “Company”), having its principal office at 3010 West 69th Street, Sioux Falls, South Dakota, 57108, and THE BANK OF NEW YORK MELLON (formerly The Bank of New York) (hereinafter called the “Corporate Trustee”), a corporation of the State of New York, whose principal corporate trust office is located at 240 Greenwich Street, 7E, New York, New York, 10286 (successor to MORGAN GUARANTY TRUST COMPANY OF NEW YORK (formerly Guaranty Trust Company of New York)), and MARY MISELIS, whose post office address is c/o The Bank of New York Mellon, 240 Greenwich Street, 7E, New York, New York, 10286 (successor to Arthur E. Burke, Karl R. Henrich, H.H. Gould, R. Amundsen, P.J. Crowley, W.T. Cunningham, Douglas J. MacInnes, MaryBeth Lewicki, Ming Ryan, Philip L. Watson and Beata Harvin) (said Mary Miselis being hereinafter sometimes called the “Co-Trustee”, and the Corporate Trustee and the Co-Trustee being hereinafter together sometimes called the “Trustees”), as Trustees under the Mortgage and Deed of Trust, dated as of October 1, 1945 (hereinafter called the “Mortgage” and, together with any indentures supplemental thereto, the “Indenture”), which Mortgage was executed and delivered by The Montana Power Company, a corporation of the State of New Jersey (hereinafter called the “Company-New Jersey”), as indirect predecessor under the Mortgage to the Company (the Company being successor under the Mortgage to NorthWestern Energy, L.L.C. (hereinafter called “NorthWestern Energy”), formerly known as The Montana Power, L.L.C., a limited liability company of the State of Montana, and NorthWestern Energy being the successor under the Mortgage to The Montana Power Company, a corporation of the State of Montana (hereinafter called the “Company-Montana”)), to Guaranty Trust Company of New York and Arthur E. Burke, as Trustees, to secure the payment of bonds issued or to be issued under and in accordance with the provisions of the Mortgage, reference to which Mortgage is hereby made, this instrument (hereinafter called the “Forty-fourth Supplemental Indenture”) being supplemental thereto;
WHEREAS, by the Mortgage, the Company-New Jersey covenanted that it would execute and deliver such supplemental indenture or indentures and such further instruments and do such further acts as might be necessary or proper to carry out more effectually the purposes of the Indenture and to make subject to the lien of the Indenture any property thereafter acquired, made or constructed and intended to be subject to the lien thereof; and
WHEREAS, the Company-New Jersey executed and delivered to the Trustees its First Supplemental Indenture, dated as of May 1, 1954 (hereinafter called the “First Supplemental Indenture”), and its Second Supplemental Indenture, dated as of April 1, 1959 (hereinafter called the “Second Supplemental Indenture”); and
WHEREAS, the Company-New Jersey was merged into the Company-Montana on November 30, 1961, and to evidence the succession of the Company-Montana to the Company-New Jersey for purposes of the bonds and the Indenture and the assumption by the Company-Montana of the covenants and conditions of the Company-New Jersey in the bonds and in the Indenture contained and to enable the Company-Montana to have and exercise the powers and rights of the Company-New Jersey under the Indenture in accordance with the terms thereof, the
Company-Montana executed and delivered to the Trustees its Third Supplemental Indenture, dated as of November 30, 1961 (hereinafter called the “Third Supplemental Indenture”); and
WHEREAS, the Company-Montana executed and delivered to the Trustees its Fourth Supplemental Indenture, dated as of April 1, 1970 (hereinafter called the “Fourth Supplemental Indenture”); its Fifth Supplemental Indenture, dated as of April 1, 1971 (hereinafter called the “Fifth Supplemental Indenture”); its Sixth Supplemental Indenture, dated as of March 1, 1974 (hereinafter called the “Sixth Supplemental Indenture”); its Seventh Supplemental Indenture, dated as of December 1, 1974 (hereinafter called the “Seventh Supplemental Indenture”); its Eighth Supplemental Indenture, dated as of July 1, 1975 (hereinafter called the “Eighth Supplemental Indenture”); its Ninth Supplemental Indenture, dated as of December 1, 1975 (hereinafter called the “Ninth Supplemental Indenture”); its Tenth Supplemental Indenture, dated as of January 1, 1979 (hereinafter called the “Tenth Supplemental Indenture”); its Eleventh Supplemental Indenture, dated as of October 1, 1983 (hereinafter called the “Eleventh Supplemental Indenture”); its Twelfth Supplemental Indenture, dated as of January 1, 1984 (hereinafter called the “Twelfth Supplemental Indenture”); its Thirteenth Supplemental Indenture, dated as of December 1, 1991 (hereinafter called the “Thirteenth Supplemental Indenture”); its Fourteenth Supplemental Indenture, dated as of January 1, 1993 (hereinafter called the “Fourteenth Supplemental Indenture”); its Fifteenth Supplemental Indenture, dated as of March 1, 1993 (hereinafter called the “Fifteenth Supplemental Indenture”); its Sixteenth Supplemental Indenture, dated as of May 1, 1993 (hereinafter called the “Sixteenth Supplemental Indenture”); its Seventeenth Supplemental Indenture, dated as of December 1, 1993 (hereinafter called the “Seventeenth Supplemental Indenture”); its Eighteenth Supplemental Indenture, dated as of August 5, 1994 (hereinafter called the “Eighteenth Supplemental Indenture”); its Nineteenth Supplemental Indenture, dated as of December 16, 1999 (hereinafter called the “Nineteenth Supplemental Indenture”); and its Twentieth Supplemental Indenture, dated as of November 1, 2001 (hereinafter called the “Twentieth Supplemental Indenture”); and
WHEREAS, the Company-Montana was merged into NorthWestern Energy (under its then name, The Montana Power, L.L.C.) on February 13, 2002; and to evidence the succession of NorthWestern Energy (under its then name, The Montana Power, L.L.C.) to the Company-Montana for purposes of the bonds and the Indenture and the assumption by NorthWestern Energy (under its then name, The Montana Power, L.L.C.) of the covenants and conditions of the Company-Montana in the bonds and in the Indenture contained and to enable NorthWestern Energy (under its then name, The Montana Power, L.L.C.) to have and exercise the powers and rights of the Company-Montana under the Indenture in accordance with the terms thereof, NorthWestern Energy (under its then name, The Montana Power, L.L.C.) executed and delivered to the Trustees its Twenty-first Supplemental Indenture, dated as of February 13, 2002 (hereinafter called the “Twenty-first Supplemental Indenture”); and
WHEREAS, NorthWestern Energy changed its name from The Montana Power, L.L.C. to NorthWestern Energy, L.L.C. on March 19, 2002; and
WHEREAS, NorthWestern Energy transferred, subject to the Lien of the Indenture, substantially all of the Mortgaged and Pledged Property as an entirety to the Company on November 20, 2002 (the “Transfer Date”), and to evidence the succession of the Company to NorthWestern Energy for purposes of the bonds and the Indenture and the assumption by the
Company of the covenants and conditions of NorthWestern Energy in the bonds and in the Indenture contained and to enable the Company to have and exercise the powers and rights of NorthWestern Energy under the Indenture in accordance with the terms thereof, the Company executed and delivered to the Trustees its Twenty-second Supplemental Indenture, dated as of November 15, 2002 (hereinafter called the “Twenty-second Supplemental Indenture”); and
WHEREAS, the Company executed and delivered to the Trustees its Twenty-third Supplemental Indenture, dated as of February 1, 2003 (hereinafter called the “Twenty-third Supplemental Indenture”); its Twenty-fourth Supplemental Indenture, dated as of November 1, 2004 (hereinafter called the “Twenty-fourth Supplemental Indenture”); its Twenty-fifth Supplemental Indenture, dated as of April 1, 2006 (hereinafter called the “Twenty-fifth Supplemental Indenture”); its Twenty-sixth Supplemental Indenture, dated as of September 1, 2006 (hereinafter called the “Twenty-sixth Supplemental Indenture”); its Twenty-seventh Supplemental Indenture, dated as of March 1, 2009 (hereinafter called the “Twenty-seventh Supplemental Indenture”); its Twenty-eighth Supplemental Indenture, dated as of October 1, 2009 (hereinafter called the “Twenty-eighth Supplemental Indenture”); its Twenty-ninth Supplemental Indenture, dated as of May 1, 2010 (hereinafter called the “Twenty-ninth Supplemental Indenture”); its Thirtieth Supplemental Indenture, dated as of August 1, 2012 (hereinafter called the “Thirtieth Supplemental Indenture”); its Thirty-first Supplemental Indenture, dated as of December 1, 2013 (hereinafter called the “Thirty-first Supplemental Indenture”); its Thirty-second Supplemental Indenture, dated as of November 1, 2014 (hereinafter called the “Thirty-second Supplemental Indenture”); its Thirty-third Supplemental Indenture, dated as of November 1, 2014 (hereinafter called the “Thirty-third Supplemental Indenture”); its Thirty-fourth Supplemental Indenture, dated as of January 1, 2015 (hereinafter called the “Thirty-fourth Supplemental Indenture”); its Thirty-fifth Supplemental Indenture, dated as of June 1, 2015 (hereinafter called the “Thirty-fifth Supplemental Indenture”); its Thirty-sixth Supplemental Indenture, dated as of August 1, 2016 (hereinafter called the “Thirty-sixth Supplemental Indenture”); its Thirty-seventh Supplemental Indenture, dated as of November 1, 2017 (hereinafter called the “Thirty-seventh Supplemental Indenture”); its Thirty-eighth Supplemental Indenture, dated as of June 1, 2019 (hereinafter called the “Thirty-eighth Supplemental Indenture”); its Thirty-ninth Supplemental Indenture, dated as of September 1, 2019 (hereinafter called the “Thirty-ninth Supplemental Indenture”); its Fortieth Supplemental Indenture, dated as of April 1, 2020 (hereinafter called the "Fortieth Indenture"); and its Forty-first Supplemental Indenture, dated as of March 1, 2021 (hereinafter called the “Forty-first Supplemental Indenture”); its Forty-second Supplemental Indenture, dated as of March 1, 2023 (hereinafter called the “Forty-second Supplemental Indenture”) and its Forty-third Supplemental Indenture, dated as of May 1, 2023 (hereinafter called the “Forty-third Supplemental Indenture”); and
WHEREAS, the Mortgage and the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first, Twenty-second, Twenty-third, Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh, Twenty-eighth, Twenty-ninth, Thirtieth, Thirty-first, Thirty-second, Thirty-third, Thirty-fourth, Thirty-fifth, Thirty-sixth, Thirty-seventh, Thirty-eighth, Thirty-ninth, Fortieth, Forty-first, Forty-second and Forty-third Supplemental Indentures were recorded in the official records of various counties and states as required by the Indenture; and
WHEREAS, the Company expects to record this Forty-fourth Supplemental Indenture in the official records of various counties and states as required by the Indenture; and
WHEREAS, an instrument dated March 15, 1955 was executed by the Company-New Jersey appointing Karl R. Henrich as Co-Trustee in succession to said Arthur E. Burke, resigned, under the Mortgage and by Karl R. Henrich accepting the appointment as Co-Trustee under the Mortgage in succession to said Arthur E. Burke, which instrument was recorded in various counties in the states of Montana, Idaho and Wyoming; and
WHEREAS, an instrument dated June 29, 1962 was executed by the Company-Montana appointing H.H. Gould as Co-Trustee in succession to said Karl R. Henrich, resigned, under the Mortgage and by H.H. Gould accepting the appointment as Co-Trustee under the Mortgage in succession to said Karl R. Henrich, which instrument was recorded in various counties in the states of Montana, Idaho and Wyoming; and
WHEREAS, an instrument dated June 22, 1973 was executed by the Company-Montana appointing R. Amundsen as Co-Trustee in succession to said H.H. Gould, resigned, under the Mortgage and by R. Amundsen accepting the appointment as Co-Trustee under the Mortgage in succession to said H.H. Gould, which instrument was recorded in various counties in the states of Montana, Idaho and Wyoming; and
WHEREAS, an instrument dated July 1, 1986 was executed by the Company-Montana appointing P.J. Crowley as Co-Trustee in succession to said R. Amundsen, resigned, under the Mortgage and by P.J. Crowley accepting the appointment as Co-Trustee under the Mortgage in succession to said R. Amundsen, which instrument was recorded in various counties in the states of Montana, Idaho and Wyoming; and
WHEREAS, by the Eighteenth Supplemental Indenture, the Company-Montana appointed (i) W.T. Cunningham as Co-Trustee in succession to said P.J. Crowley, resigned, under the Mortgage and W.T. Cunningham accepted the appointment as Co-Trustee under the Mortgage in succession to said P.J. Crowley, and (ii) The Bank of New York Mellon as Corporate Trustee in succession to Morgan Guaranty Trust Company of New York, resigned, under the Mortgage and The Bank of New York Mellon accepted the appointment as Corporate Trustee under the Mortgage in succession to said Morgan Guaranty Trust Company of New York, which supplemental indenture was recorded in various counties in the states of Montana, Idaho and Wyoming; and
WHEREAS, an instrument dated March 29, 1999 was executed by the Company-Montana appointing Douglas J. MacInnes as Co-Trustee in succession to said W.T. Cunningham, resigned, under the Mortgage and by Douglas J. MacInnes accepting the appointment as Co-Trustee under the Mortgage in succession to said W.T. Cunningham, which instrument was recorded in various counties in the states of Montana, Idaho and Wyoming; and
WHEREAS, by the Twenty-third Supplemental Indenture, the Company appointed MaryBeth Lewicki as Co-Trustee in succession to said Douglas J. MacInnes, removed, under the Mortgage and MaryBeth Lewicki accepted the appointment as Co-Trustee under the Mortgage in succession to said Douglas J. MacInnes; and
WHEREAS, by the Twenty-fifth Supplemental Indenture, the Company appointed Ming Ryan as Co-Trustee in succession to said MaryBeth Lewicki, removed, under the Mortgage and Ming Ryan accepted the appointment as Co-Trustee under the Mortgage in succession to said Mary Beth Lewicki; and
WHEREAS, by the Thirtieth Supplemental Indenture, the Company appointed Philip L. Watson as Co-Trustee in succession to said Ming Ryan, removed, under the Mortgage and Philip L. Watson accepted the appointment as Co-Trustee under the Mortgage in succession to said Ming Ryan; and
WHEREAS, by the Thirty-fifth Supplemental Indenture, the Company appointed Beata Harvin as Co-Trustee in succession to said Philip L. Watson, removed, under the Mortgage and Beata Harvin accepted the appointment as Co-Trustee under the Mortgage in succession to said Philip L. Watson; and
WHEREAS, by the Forty-second Supplemental Indenture, the Company appointed Mary Miselis as Co-Trustee in succession to said Beata Harvin, removed, under the Mortgage and Mary Miselis accepted the appointment as Co-Trustee under the Mortgage in succession to said Beata Harvin; and
WHEREAS, the Company-New Jersey, the Company-Montana or the Company has heretofore issued, in accordance with the provisions of the Mortgage, the following series of First Mortgage Bonds:
| | | | | | | | |
| Series | Principal
Amount
Issued | Principal Amount
Outstanding |
| 2-7/8% Series due 1975 | $40,000,000 | NONE |
| 3-1/8% Series due 1984 | 6,000,000 | NONE |
| 4-1/2% Series due 1989 | 15,000,000 | NONE |
| 8-1/4% Series due 1974 | 30,000,000 | NONE |
| 7-1/2% Series due 2001 | 25,000,000 | NONE |
| 8-5/8% Series due 2004 | 60,000,000 | NONE |
| 8-3/4% Series due 1981 | 30,000,000 | NONE |
| 9.60% Series due 2005 | 35,000,000 | NONE |
| 9.70% Series due 2005 | 65,000,000 | NONE |
| 9-7/8% Series due 2009 | 50,000,000 | NONE |
| 11-3/4% Series due 1993 | 75,000,000 | NONE |
| 10/10-1/8% Series due 2004/2014 | 80,000,000 | NONE |
| 8-1/8% Series due 2014 | 41,200,000 | NONE |
| 7.70% Series due 1999 | 55,000,000 | NONE |
| 8-1/4% Series due 2007 | 55,000,000 | NONE |
| 8.95% Series 2022 | 50,000,000 | NONE |
| Secured Medium-Term Notes | 68,000,000 | NONE |
| 7% Series due 2005 | 50,000,000 | NONE |
| 6-1/8% Series due 2023 | 90,205,000 | NONE |
| | |
| | | | | | | | |
| 5.90% Series due 2023 | 80,000,000 | NONE |
| 0% Series due 1999 | 210,321,007 | NONE |
| 7.30% Series due 2006 | 150,000,000 | NONE |
| Collateral (2002) Series due 2006 | 280,000,000 | NONE |
| Collateral (2004) Series A due 2009 | 90,000,000 | NONE |
| Collateral (2004) Series B due 2011...................... | 72,000,000 | NONE |
| Collateral (2004) Series C due 2014 ..................... | 161,000,000 | NONE |
| 4.65% Series due 2023 (Twenty-seventh) ............. | 170,205,000 | NONE |
| 6.04% Series due 2016 (Twenty-eighth) ............... | 150,000,000 | NONE |
| 6.34% Series due 2019 (Twenty-ninth) ………….. | 250,000,000 | NONE |
| 5.71% Series due 2039 (Thirtieth) ….. …..…..….. | 55,000,000 | 55,000,000 |
| 5.01% Series due 2025 (Thirty-first) … ….. …….. | 161,000,000 | 161,000,000 |
| 4.15% Series due 2042 (Thirty-second) …...…… | 60,000,000 | 60,000,000 |
| 4.30% Series due 2052 (Thirty-third) ……...…… | 40,000,000 | 40,000,000 |
| 3.99% Series due 2028 (Thirty-fourth) ……...…… | 35,000,000 | 35,000,000 |
| 4.85% Series due 2043 (Thirty-fifth) …………… | 15,000,000 | 15,000,000 |
| 4.176% Series due 2044 (Thirty-sixth)…………… | 450,000,000 | 450,000,000 |
| 3.11% Series due 2025 (Thirty-seventh) …. ….…. | 75,000,000 | 75,000,000 |
| 4.11% Series due 2045 (Thirty-eighth) …...…...…. | 125,000,000 | 125,000,000 |
2.00% Series due 2023 (Thirty-ninth) ….….….…. 4.03% Series due 2047 (Fortieth)… …………… 3.98% Series due 2049 (Forty-first) ……. …….… | 144,660,000 250,000,000 50,000,000 | 144,660,000 250,000,000 50,000,0001 |
| 3.98% Series due 2049 (Forty-second) …………. | 100,000,000 | 100,000,000 |
| 3.21% Series due May 15, 2030 (Forty-third) …. | 100,000,000 | 100,000,000 |
| 1.00% Series due March 26, 2024 (Forty-fourth). | 100,000,000 | 100,000,000 |
| 5.57% Series due March 30, 2025 (Forty-fifth) …. | 239,000,000 | 239,000,000 |
which bonds are also hereinafter sometimes called “Bonds of the First through Forty-fifth Series”, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each series of bonds (other than the First Series) issued thereunder and of the coupons to be attached to coupon bonds of such series shall be established by Resolution of the Board of Directors of the Company and that the form of such series, as established by said Board of Directors, shall specify the descriptive title of the bonds and various other terms thereof, and may also contain such provisions not inconsistent with the provisions of the Indenture as the Board of Directors may, in its discretion, cause to be inserted therein expressing or referring to the terms and conditions upon which such bonds are to be issued and/or secured under the Indenture; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that any power, privilege or right expressly or impliedly reserved to or in any way conferred upon the Company by any provision of the Indenture, whether such power, privilege or right is in any way restricted or is unrestricted, may be in whole or in part waived or surrendered or subjected to any restriction if at the time unrestricted or to additional restriction if already restricted, and the
1 Being surrendered for cancellation concurrently with the execution and delivery of this Forty-fourth Supplemental Indenture.
Company may enter into any further covenants, limitations or restrictions for the benefit of any one or more series of bonds issued thereunder; or the Company may cure any ambiguity contained therein or in any supplemental indenture or correct or supplement any provision therein or in any supplemental indenture which may be defective or inconsistent with any other provision therein or in any supplemental indenture; or the Company may make other changes to the provisions thereof or of any supplemental indenture or add new provisions thereto or to any supplemental indenture or eliminate provisions therefrom or from any supplemental indenture, provided that the same does not adversely affect the interests of the holders of any of the bonds then Outstanding in any material respect; or the Company may (in lieu of establishment by Resolution as provided in Section 8 of the Mortgage) establish the terms and provisions of any series of bonds other than the First Series; each by an instrument in writing executed and acknowledged by the Company in such manner as would be necessary to entitle a conveyance of real estate to record in all of the states in which any property at the time subject to the lien of the Indenture shall be situated; and
WHEREAS, the Company now desires to create a new series of bonds (Bonds of the Forty-sixth Series (as defined below)) and (pursuant to the provisions of Section 120 of the Mortgage) to add to its covenants and agreements contained in the Mortgage certain other covenants and agreements to be observed by it and to alter and amend in certain respects the covenants and provisions contained in the Indenture; and
WHEREAS, the execution and delivery by the Company of this Forty-fourth Supplemental Indenture, and the terms of the Bonds of the Forty-sixth Series, hereinafter referred to, have been duly authorized by the Board of Directors of the Company by appropriate Resolutions of said Board of Directors.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of $1.00 to it duly paid by the Trustees at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and in further evidence of assurance of the estate, title and rights of the Trustees and in order further to secure the payment of both the principal of and interest and premium, if any, on the bonds from time to time issued under the Indenture, according to their tenor and effect and the performance of all the provisions of the Indenture (including any modification made as in the Mortgage provided) and of said bonds, and to confirm the lien of the Mortgage, as heretofore supplemented, on certain after-acquired property, hereby grants, bargains, sells, releases, conveys, assigns, transfers, mortgages, pledges, sets over and confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of the Mortgage, as heretofore supplemented) unto Mary Miselis, Co-Trustee, and (to the extent of its legal capacity to hold the same for the purposes hereof) to The Bank of New York Mellon, the Corporate Trustee, as Trustees under the Indenture, and to their successor or successors in said trust, and to said Trustees and their successors and assigns forever, all property, real, personal and mixed, of the kind or nature specifically mentioned in the Mortgage, as heretofore supplemented, or of any other kind or nature (whether or not located in the State of Montana), acquired by the Company after the date of the execution and delivery of the Mortgage, as heretofore supplemented (except any herein or in the Mortgage, as heretofore supplemented, expressly excepted), now owned or, subject to the provisions of subsection (I) of Section 87 of the Mortgage, as heretofore supplemented, hereafter acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) and wheresoever situated, including (without in anywise limiting or impairing by the enumeration of the same the scope and intent of the foregoing, or of any general description contained in the Indenture) all lands, power sites, flowage rights, water rights, water locations, water appropriations, ditches, flumes, reservoirs, reservoir sites, canals, raceways, dams, dam sites, aqueducts and all other rights or means for appropriating, conveying, storing and supplying water; all rights of way and roads; all plants for the generation of electricity by steam, water and/or other power; all powerhouses, gas plants, street lighting systems, standards and other equipment incidental thereto, telephone, radio and television systems, air-conditioning systems and equipment incidental thereto, water works, water systems, steam heat and hot water plants, substations, lines, service and supply systems, bridges, culverts, tracks, ice or refrigeration plants and equipment, offices, buildings and other structures and the equipment thereof, all machinery, engines, boilers, dynamos, electric, gas and other machines, regulators, meters, transformers, generators, motors, electrical, gas and mechanical appliances, conduits, cables, water, steam heat, gas or other pipes, gas mains and pipes, service pipes, fittings, valves and connections, pole and transmission lines, wires, cables, tools, implements, apparatus, furniture and chattels; all franchises, consents or permits, all lines for the transmission and distribution of electric current, gas, steam heat or water for any purpose including towers, poles, wires, cables, pipes, conduits, ducts and all apparatus for use in connection therewith; all real estate, lands, easements, servitudes, licenses, permits, franchises, privileges, rights of way and other rights in or relating to real estate or the occupancy of the same and (except as herein or in the Mortgage, as heretofore supplemented, expressly excepted) all the right, title and interest of the Company in and to all other property of any kind or nature appertaining to and/or used and/or occupied and/or enjoyed in connection with any property hereinbefore or in the Mortgage, as heretofore supplemented, described.
TOGETHER with all and singular the tenements, hereditaments, prescriptions, servitudes and appurtenances belonging or in anywise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders and (subject to the provisions of Section 57 of the Mortgage) the tolls, rents, revenues, issues, earnings, income, product and profits thereof, and all the estate, right, title and interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid property and franchises and every part and parcel thereof.
IT IS HEREBY AGREED by the Company that, subject to the provisions of subsection (I) of Section 87 of the Mortgage, as heretofore supplemented, all the property, rights and franchises acquired by the Company (by purchase, consolidation, merger, donation, construction, erection or in any other way) after the date hereof, except any herein or in the Mortgage, as heretofore supplemented, expressly excepted, shall be and are as fully granted and conveyed hereby and as fully embraced within the lien hereof and the lien of the Mortgage, as heretofore supplemented, as if such property, rights and franchises were now owned by the Company and were specifically described herein and conveyed hereby.
PROVIDED that the following are not and are not intended to be now or hereafter granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed hereunder and are hereby expressly excepted from the lien and operation of the Mortgage, as supplemented, viz: (1) cash, shares of stock, bonds, notes and other obligations and other securities not specifically pledged, paid, deposited, delivered or
held under the Mortgage, as supplemented, or covenanted so to be; (2) merchandise, equipment, apparatus, materials or supplies held for the purpose of sale or other disposition in the usual course of business; fuel, oil and similar materials and supplies consumable in the operation of any of the properties of the Company; all aircraft, tractors, rolling stock, trolley coaches, buses, motor coaches, automobiles, motor trucks, and other vehicles and materials and supplies held for the purpose of repairing or replacing (in whole or part) any of the same; (3) bills, notes and accounts receivable, judgments, demands and choses in action, and all contracts, leases and operating agreements not specifically pledged under the Mortgage, as supplemented, or covenanted so to be; the Company’s contractual rights or other interest in or with respect to tires not owned by the Company; (4) the last day of the term of any lease or leasehold which may be or become subject to the lien of the Mortgage, as supplemented; (5) electric energy, gas, steam, water, ice, and other materials or products generated, manufactured, produced, purchased or acquired by the Company for sale, distribution or use in the ordinary course of its business; all timber, minerals, mineral rights and royalties and all Gas and Oil Production Property, as defined in Section 4 of the Mortgage, as supplemented; (6) the Company’s franchise to be a corporation; and (7) any property heretofore released pursuant to any provisions of the Indenture and not heretofore disposed of by the Company-New Jersey, the Company-Montana, NorthWestern Energy or the Company; provided, however, that the property and rights expressly excepted from the lien and operation of the Mortgage, as supplemented, in the above subdivisions (2) and (3) shall (to the extent permitted by law) cease to be so excepted in the event and as of the date that either or both of the Trustees or a receiver or trustee shall enter upon and take possession of the Mortgaged and Pledged Property in the manner provided in Article XIII of the Mortgage by reason of the occurrence of a Default as defined in Section 65 thereof.
TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Co-Trustee and (to the extent of its legal capacity to hold the same for the purposes hereto) unto the Corporate Trustee, as Trustees, and their successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms, trusts and conditions and subject to and with the same provisos and covenants as are set forth in the Mortgage, as supplemented, this Forty-fourth Supplemental Indenture being supplemental thereto.
AND IT IS HEREBY COVENANTED by the Company that all the terms, conditions, provisos, covenants and provisions contained in the Mortgage, as supplemented, shall affect and apply to the property hereinbefore described and conveyed and to the estate, rights, obligations and duties of the Company and the Trustees and the beneficiaries of the trust with respect to said property, and to the Trustees and their successors as Trustees of said property in the same manner and with the same effect as if the said property had been owned by the Company-New Jersey at the time of the execution of the Mortgage, and had been specifically and at length described in and conveyed to the Trustees, by the Mortgage as a part of the property therein stated to be conveyed.
SUBJECT NEVERTHELESS, to the limitation permitted by subsection (I) of Section 87 of the Mortgage, as supplemented, namely, that notwithstanding the foregoing, the Mortgage, as
supplemented, shall not become or be or be required to become or be a lien upon any of the properties or franchises owned by the Company on the Transfer Date or thereafter acquired by the Company (by purchase, consolidation, merger, donation, construction, erection or in any other way) except (a) those acquired by it from NorthWestern Energy, and improvements, extensions and additions thereto and renewals and replacements thereof, (b) the property made and used by the Company as the basis under any of the provisions of the Indenture for the authentication and delivery of additional bonds or the withdrawal of cash or the release of property or a credit under Section 39 or Section 40 of the Indenture, and (c) such franchises, repairs and additional property as may be acquired, made or constructed by the Company (1) to maintain, renew and preserve the franchises covered by the Indenture, or (2) to maintain the property mortgaged and intended to be mortgaged under the Indenture as an operating system or systems in good repair, working order and condition, or (3) in rebuilding or renewal of property, subject to the Lien under the Indenture, damaged or destroyed, or (4) in replacement of or substitution for machinery, apparatus, equipment, frames, towers, poles, wire, pipe, tools, implements and furniture, subject to the Lien thereunder, which shall have become old, inadequate, obsolete, worn out, unfit, unadapted, unserviceable, undesirable or unnecessary for use in the operation of the property mortgaged and intended to be mortgaged thereunder; provided, however, that said limitation permitted by subsection (I) of Section 87 of the Mortgage, as supplemented, shall not apply to the Colstrip Property (as defined in the Twenty-ninth Supplemental Indenture), which pursuant to the Twenty-ninth Supplemental Indenture was expressly made subject to the Lien of the Mortgage, as supplemented, and constitutes Mortgaged and Pledged Property.
The Company further covenants and agrees to and with the Trustees and their successors in said trust under the Indenture, as follows:
ARTICLE I
Forty-sixth Series of Bonds
Section 1.01. General Terms of Bonds to be Issued.
(a) There is hereby created a series of bonds designated: “3.875% Series due July 1, 2028” (herein sometimes referred to as the “Forty-sixth Series”; and the bonds of such Forty-sixth Series are sometimes hereinafter referred to as the “Bonds of the Forty-sixth Series” or the “Bonds”), each of which shall bear the descriptive title “First Mortgage Bond.” Bonds of the Forty-sixth Series shall mature on July 1, 2028 and shall be issued as fully registered bonds in denominations of $5,000 and in integral multiples thereof.
The Bonds of the Forty-sixth Series shall bear interest at the rate of 3.875% per annum, payable in arrears, the first interest payment to be made on January 1, 2024, and shall be for the period from the date of first authentication of the Bonds of the Forty-sixth Series through January 1, 2024, with subsequent interest payments payable semiannually on July 1st and January 1st of each year (each such payment date, an “Interest Payment Date”) until the principal of the Bonds of the Forty-sixth Series is paid or made available for payment, the principal of and interest on each Bond of the Forty-sixth Series to be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for public and private debts. The Bonds of the Forty-sixth Series shall be dated as in Section 10 of the Mortgage provided.
The Bonds of the Forty-sixth Series shall be issued substantially in the form of Exhibit A hereto.
At the option of the Holder, any Bonds of the Forty-sixth Series, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, shall be exchangeable for a like aggregate principal amount of bonds of the same series of other authorized denominations.
The Bonds of the Forty-sixth Series shall not be transferable except to any successor trustee under the Indenture of Trust, dated as of June 1, 2023, of the City of Forsyth, Rosebud County, Montana (hereinafter referred to as the “Forsyth Indenture”), relating to the City of Forsyth, Rosebud County, Montana, Pollution Control Revenue Refunding Bonds (NorthWestern Corporation Colstrip Project) Series 2023 (hereinafter referred to as the “Forsyth Bonds”), any such transfer to be made (subject to the provisions of Section 12 of the Mortgage) at the office or agency of the Company in the Borough of Manhattan, The City of New York.
Upon any exchange or transfer of Bonds of the Forty-sixth Series, the Company may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge, as provided in Section 12 of the Mortgage, but the Company hereby waives any right to make a charge in addition thereto for any exchange or transfer of Bonds of the Forty-sixth Series.
Upon payment of the principal or premium, if any, or interest on the Forsyth Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with the Forsyth Indenture, Bonds of the Forty-sixth Series in a principal amount equal to the principal amount of such Forsyth Bonds, shall, to the extent of such payment of principal, premium, if any, or interest, be deemed fully-paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such Bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee.
(b) Upon the delivery of this Forty-sixth Supplemental Indenture, Bonds of the Forty-sixth Series in the aggregate principal amount of $144,660,000 may be authenticated and delivered pursuant to Article VI of the Mortgage, forthwith and will be Outstanding in addition to $55,000,000 aggregate principal amount of Bonds of the Thirtieth Series Outstanding, $161,000,000 aggregate principal amount of Bonds of the Thirty-first Series Outstanding, $60,000,000 aggregate principal amount of Bonds of the Thirty-second Series Outstanding, $40,000,000 aggregate principal amount of Bonds of the Thirty-third Series Outstanding, $35,000,000 aggregate principal amount of Bonds of the Thirty-fourth Series Outstanding, $15,000,000 aggregate principal amount of Bonds of the Thirty-fifth Series Outstanding, $450,000,000 aggregate principal amount of Bonds of the Thirty-sixth Series Outstanding, $75,000,000 aggregate principal amount of Bonds of the Thirty-seventh Series Outstanding, $125,000,000 aggregate principal amount of Bonds of the Thirty-eighth Series Outstanding, $250,000,000 aggregate principal amount of Bonds of the Fortieth Series Outstanding, $50,000,000 aggregate principal amount of Bonds of the Forty-first Series Outstanding;
$100,000,000 aggregate principal amount of Bonds of the Forty-second Series Outstanding, $100,000,000 aggregate principal amount of Bonds of the Forty-third Series Outstanding, $100,000,000 aggregate principal amount of Bonds of the Forty-fourth Series Outstanding and $239,000,000 aggregate principal amount of Bonds of the Forty-fifth Series Outstanding at the date of delivery of this Forty-fourth Supplemental Indenture.
Section 1.02. Redemption and Additional Terms of Bonds.
(a) Upon the redemption, in whole or in part, of the Forsyth Bonds, pursuant to Section 3.01 of the Forsyth Indenture, Bonds of the Forty-sixth Series shall be redeemed in whole or in like part, as the case may be. The Corporate Trustee may conclusively presume that no redemption of Bonds of the Forty-sixth Series is required pursuant to this subsection (a) of this Section 1.02 unless and until it shall have received a written notice from the trustee under the Forsyth Indenture (hereinafter referred to as the “Forsyth Trustee”), signed by its President, a Vice President or a Trust Officer, stating that Forsyth Bonds are to be redeemed pursuant to Section 3.01 of the Forsyth Indenture (said notice is hereinafter referred to as the “Forsyth Redemption Demand”). The Forsyth Redemption Demand shall also state the date on which the Forsyth Bonds are to be redeemed (the “Redemption Date”), the principal amount of Bonds of the Forty-fourth Series to be redeemed and that such amount is equal to the principal amount of the Forsyth Bonds to be redeemed and shall instruct the Corporate Trustee to call the stated principal amount of Bonds of the Forty-sixth Series for redemption on the date on which the Forsyth Bonds are to be redeemed. The Forsyth Redemption Demand shall also contain a waiver of notice of such redemption by the Forsyth Trustee, as Holder of all Bonds of the Forty-fourth Series then Outstanding. The Corporate Trustee may conclusively presume the statements contained in the Forsyth Redemption Demand to be correct. Redemption of Bonds of the Forty-sixth Series shall be at the principal amount of the bonds to be redeemed together with the applicable accrued interest to the Redemption Date (the “Redemption Price”), and such amount shall become due and payable on the Redemption Date. The Company hereby covenants that, if a Forsyth Redemption Demand shall be delivered to the Corporate Trustee, the Company, subject to subsection (b) of this Section 1.02, will deposit, on or before the Redemption Date, with the Corporate Trustee, in accordance with Article X of the Mortgage, an amount in cash equal to the Redemption Price.
(b) All Bonds of the Forty-sixth Series shall be issued and delivered to, and registered in the name of, the Forsyth Trustee (or, subject to Section 6.11 of the Forsyth Indenture, its nominee). The obligation of the Company to make payments with respect to the principal of and interest on Bonds of the Forty-sixth Series shall be fully or partially, as the case may be, satisfied and discharged to the extent that, at the time that any such payment shall be due, there shall be in the Bond Fund established pursuant to the Forsyth Indenture sufficient available funds to fully or partially pay the then due principal of and interest on the Forsyth Bonds. The Corporate Trustee may conclusively presume that the obligation of the Company to make payments with respect to the principal of and interest on Bonds of the Forty-sixth Series shall have been fully satisfied and discharged unless and until the Corporate Trustee shall have received a written notice from the Forsyth Trustee, signed by its President, a Vice President or a Trust Officer, stating (i) that there are not sufficient available funds in such Bond Fund to make timely payment of the principal of or interest on the Forsyth Bonds, and (ii) the amount of funds required to make such payment. The Corporate Trustee may conclusively presume the statements contained in any such notice to be correct.
(c) Unless the Company defaults in payment of the Redemption Price, on or after the Redemption Date interest will cease to accrue on the Bonds of the Forty-sixth Series or portions thereof called for redemption.
ARTICLE II
Definitions
The following terms shall have the meanings provided herein for all purposes of this Supplemental Indenture, unless the context clearly requires otherwise (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Holder” means a Person in whose name a Bond of the Forty-sixth Series is registered.
“Person” means an individual, partnership, corporation, limited liability company, unincorporated organization, association, joint-stock company, trust, joint venture, government, or any agency or political subdivision thereof or any other entity.
ARTICLE III
Reservation of Right to Make Amendments
Section 3.01 The Company reserves the right, without any consent or other action by the Holders of Bonds of the Forty-sixth Series, or bonds of any subsequent series, to make such amendments to the Mortgage (as supplemented) as shall be necessary in order to cause there to be excluded from the Mortgaged and Pledged Property and the Lien of the Mortgage (as supplemented) at all times, including, without limitation, in the event and following the date that either or both of the Trustees or a receiver or trustee shall enter upon and take possession of the Mortgaged and Pledged Property in the manner provided in Article XIII of the Mortgage (as supplemented) by reason of the occurrence of a Default as defined in Section 65 thereof, all of the Company’s right, title and interest, whenever arising or acquired, in, to and under all accounts (as defined in the Uniform Commercial Code as in effect from time to time in the State of New York), all accounts receivable, all payments for goods sold or leased or for services rendered (whether or not they have been earned by performance), all rights in any merchandise or goods which any of the foregoing may represent, all rights, title, security and guaranties with respect to any or all of the foregoing, and all proceeds (as defined in the Uniform Commercial Code as in effect from time to time in the State of New York) of, and all collections from or with respect to, any or all of the foregoing.
ARTICLE IV
Amendments to Mortgage
Section 4.01. So long as any of the Bonds of the Forty-sixth Series remain Outstanding, Section 7 of the Mortgage is amended by adding at the end thereof the following additional paragraphs:
If any bonds Outstanding at the date of a Net Earning Certificate (except any for the refunding of which the bonds applied for are to be issued) or any bonds then applied for in pending applications (including the application in connection with which such Net Earning Certificate is made) bear or are to bear interest at a variable rate or variable rates such that the interest requirements with respect to such bonds for any twelve (12) month period prior to the stated maturity date of such bonds are not determinable at the date of such Net Earning Certificate (any such bonds being referred to as “Variable Rate Bonds”), then (in lieu of setting forth the Annual Interest Requirements (as otherwise prescribed by this Section 7), such Net Earning Certificate shall (A) set forth (i) the sum of the amounts required by clauses (i) through (iv) of paragraph (B) of this Section 7 (in the case of such clauses (i) and (ii), excluding the interest requirements in respect of the Variable Rate Bonds) (the sum of such amounts being referred to herein and to be referred to in such Net Earning Certificate as the “Fixed Rate Interest Amount”), and (ii) the amount (referred to herein and to be referred to in such Net Earning Certificate as the “Maximum Permitted Variable Rate Interest Amount”) by which (x) one-half of the Adjusted Net Earnings of the Company set forth in such Net Earning Certificate, exceeds (y) the Fixed Rate Interest Amount set forth in such Net Earning Certificate, and (ii) if such Net Earning Certificate is accompanied by a certificate of an independent (as hereinafter defined) investment banking firm, signed by a managing director or officer thereof, to the effect that, based upon historical fluctuations in the indices upon which the variable rate or variable rates borne by the Variable Rate Bonds are based, and taking into account the margins to be added to or subtracted from such indices and/or any other adjustments to be made in determining such variable rate or variable rates and prevailing and projected conditions in the markets influencing such indices, such independent (as hereinafter defined) investment banking firm believes (or is of the view), as of the date of such certificate, that the aggregate amount of interest to be payable on all of the Variable Rate Bonds during any period of twelve (12) months prior to the stated maturity date last to occur of any of the Variable Rate Bonds will not exceed the Maximum Permitted Variable Rate Interest Amount (as calculated by the Company in such Net Earning Certificate without any responsibility on the part of such independent (as hereinafter defined) investment banking firm for the calculation thereof), such Net Earning Certificate shall be deemed for all purposes of the Mortgage (including, without limitation, Sections 26, 28 and 29 of the Mortgage) to show Adjusted Net Earnings of the Company to be as required by Section 27 of the Mortgage. As used in this Section 7, “independent” means, with respect to an investment banking firm that provides a certificate pursuant to this Section 7, that: (i) such investment banking firm is competent to provide such certificate (and such investment banking firm shall be conclusively presumed to be competent to provide such certificate if such investment banking firm is an investment banking firm of nationally recognized standing and engages in interest rate swap transactions in the ordinary course of its business); (ii) such investment banking firm does not have any direct or indirect investment in the Company or in any bonds that, as of the date of such certificate, are Outstanding or the subject of a pending application for authentication and delivery under the Mortgage (including, without limitation, any
bonds that are subject of the Net Earning Certificate to which such certificate relates) or in any affiliate of the Company (other than de minimus amounts of loans or securities of the Company or affiliates of the Company held in its or its affiliates’ accounts and any investment in, or ownership of, additional securities or loans of the Company or affiliates of the Company resulting from its market making activities in the ordinary course of its business); (iii) such investment banking firm is not, and none of its officers or directors is, an affiliate of the Company; and (iv) such investment banking firm is not acting as an underwriter with respect to any bonds that are the subject of the Net Earning Certificate to which such certificate relates or as an arranger or provider of the loans, extensions of credit or other securities (if any) for which such bonds are collateral security.
If the Company is a successor corporation (within the meaning of Section 86 of this Indenture), the “Adjusted Net Earnings of the Company” as set forth in each Net Earning Certificate shall be calculated as described in the last two sentences of Section 86 of this Indenture.
Section 4.02. So long as any of the Bonds of the Forty-sixth Series remain Outstanding, Section 27 of the Mortgage is amended by adding at the end thereof the following additional sentence:
As described in the penultimate paragraph of Section 7 hereof, and subject to the conditions therein specified, a Net Earning Certificate shall be deemed to show Adjusted Net Earnings of the Company to be as required by this Section 27 (without any necessity for such Net Earning Certificate to specify Annual Interest Requirements).
Section 4.03. So long as any of the Bonds of the Forty-sixth Series are Outstanding, Section 86 of the Mortgage is amended by adding at the end thereof the following additional sentences:
For the avoidance of any doubt, it is expressly stated that in the event that a successor corporation (having succeeded to and having been substituted for the Company in accordance with this Section 86) shall exercise any right under this Indenture (whether as to the issuance of additional bonds (including, without limitation, the Bonds of the Forty-sixth Series), the withdrawal of cash, the release of property, the taking of credit under Section 39 or Section 40 hereof, or otherwise) and a Net Earning Certificate shall be required by the terms of this Indenture in connection therewith, the “Adjusted Net Earnings of the Company” shall be, and shall be stated in such Net Earning Certificate to be, the lesser of (A) the amount (for the applicable period selected in accordance with paragraph (A) of Section 7 of this Indenture) determined in accordance with paragraph (A) of Section 7 of this Indenture (and the other provisions of such Section 7 that are relevant to such paragraph) on the basis of (i) the items set forth in clauses (1), (2), (4) and (6) of paragraph (A) of such Section 7 being such portions of such items of such successor corporation as are reasonably allocated by such successor corporation to or from the Mortgaged and Pledged Property as a plant or plants and an operating system
or operating systems (and if, on the date of a Net Earning Certificate, such successor corporation shall be a party to any other general or first mortgage indenture and deed of trust relating to property other than the Mortgaged and Pledged Property and the lien of such other mortgage indenture and deed of trust shall not have been discharged, such reasonable allocation shall be in a manner consistent with the manner of allocation utilized and/or to be utilized by such successor corporation in making calculations of the “Adjusted Net Earnings of the Company” (or other comparable term) under and as defined in such other mortgage indenture and deed of trust), (ii) the item set forth in clause (8) of paragraph (A) of such Section 7 being calculated without regard to income (net) derived from any electric and/or gas utility business of the successor corporation in which the Mortgaged and Pledged Property is not utilized (but otherwise in accordance with such Section 7), and (iii) the item set forth in clause (10) of paragraph (A) of such Section 7 being calculated without regard to sub-clause (b) of such clause and without regard to the proviso to such clause (but otherwise in accordance with such clause), and (B) the amount (for the applicable period selected in accordance with paragraph (A) of Section 7 of this Indenture) determined in accordance with paragraph (A) of Section 7 of this Indenture (and the other provisions of such Section 7 that are relevant to such paragraph) (without any allocation or distinction as to the derivation of the items set forth in any of the clauses of paragraph (A) of such Section 7, other than allocation or distinction between (i) the electric and/or gas utility business or businesses in which such successor corporation is engaged (whether or not the Mortgaged and Pledged Property is utilized in connection therewith), and (ii) the other business or businesses in which such successor corporation is engaged (with such other business or businesses being given effect under the items set forth in clauses (8) and (10) of paragraph (A) of such Section 7)). Each such Net Earning Certificate shall contain a statement of the signers of such Net Earning Certificate that, in the opinion of such signers, the allocations made in the calculations of “Adjusted Net Earnings of the Company” as set forth in such Net Earning Certificate are in accordance with the requirements of the preceding sentence of this Section 86.
Section 4.04 For so long as any Bonds of the Forty-sixth Series are Outstanding, the Company shall not subject, or permit to be subjected, any Mortgaged and Pledged Property under the Mortgage to the lien of the Company’s General Mortgage Indenture and Deed of Trust dated as of August 1, 1993, as amended and supplemented.
ARTICLE V
Miscellaneous Provisions
Section 5.01. Subject to the amendments provided for in this Forty-fourth Supplemental Indenture, the terms defined in the Mortgage, as heretofore supplemented, shall, for all purposes of this Forty-fourth Supplemental Indenture, have the meanings specified in the Mortgage, as heretofore supplemented.
Section 5.02. The Trustees hereby accept the trusts herein declared, provided, created or supplemented and agree to perform the same upon the terms and conditions herein and in the Mortgage, as heretofore supplemented, set forth and upon the following terms and conditions:
The Trustees shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Forty-fourth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. In general, each and every term and condition contained in Article XVII of the Mortgage shall apply to and form part of this Forty-fourth Supplemental Indenture with the same force and effect as if the same were herein set forth in full with such omissions, variations and insertions, if any, as may be appropriate to make the same conform to the provisions of this Forty-fourth Supplemental Indenture.
Section 5.03. Whenever in this Forty-fourth Supplemental Indenture any of the parties hereto is named or referred to, this shall, subject to the provisions of Articles XVI and XVII of the Mortgage, be deemed to include the successors and assigns of such party, and all the covenants and agreements in this Forty-fourth Supplemental Indenture contained by or on behalf of the Company, or by or on behalf of the Trustees shall, subject as aforesaid, bind and inure to the respective benefit of the respective successors and assigns of such parties, whether so expressed or not.
Section 5.04. Nothing in this Forty-fourth Supplemental Indenture, expressed or implied, is intended, or shall be construed, to confer upon, or to give to, any person, firm or corporation, other than the parties hereto and the holders of the bonds and coupons Outstanding under the Indenture, any right, remedy or claim under or by reason of this Forty-fourth Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants, conditions, stipulations, promises and agreements in this Forty-fourth Supplemental Indenture contained by or on behalf of the Company shall be for the sole and exclusive benefit of the parties hereto, and of the holders of the bonds and coupons Outstanding under the Indenture.
Section 5.05. This Forty-fourth Supplemental Indenture shall be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, NORTHWESTERN CORPORATION has caused its corporate name to be hereunto affixed, and this instrument to be signed by one of its Vice Presidents, and THE BANK OF NEW YORK MELLON, in token of its acceptance of the trust hereby created, has caused its corporate name to be hereunto affixed, and this instrument to be signed by one of its Vice Presidents or one of its Assistant Vice Presidents, and MARY MISELIS, for all like purposes, has hereunto set her hand, as of the day and year first above written.
NORTHWESTERN CORPORATION
By: /s/ Crystal D. Lail
Crystal D. Lail
Vice President and Chief Financial Officer
[Signature Page to the Forty-fourth Supplemental Indenture]
STATE OF SOUTH DAKOTA )
) ss.
COUNTY OF LINCOLN )
This instrument was acknowledged before me on this 22nd day of June, 2023, by Crystal D. Lail, Vice President and Chief Financial Officer, of NORTHWESTERN CORPORATION, a Delaware corporation.
/s/ Chelsey Wilson
Notary Public
[SEAL]
NOTARY PUBLIC for the State of South Dakota
Residing in Sioux Falls, South Dakota - Lincoln County
My Commission Expires January 14, 2028
[Acknowledgment to the Forty-fourth Supplemental Indenture]
THE BANK OF NEW YORK MELLON,
as Corporate Trustee
By: /s/ Francine Kincaid
Name: Francine Kincaid
Title: Vice President
[Signature Page to the Forty-fourth Supplemental Indenture]
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
This instrument was acknowledged before me on this 26th day of June, 2023, by Francine Kincaid, Vice President of THE BANK OF NEW YORK MELLON, a New York corporation.
/s/ Rafal Bar
Notary Public
Rafal Bar
NOTARY PUBLIC STATE OF NEW YORK
Registration No. 01BA6293822
Qualified in Kings County
My Commission Expires: 01/21/2026
[Acknowledgment to the Forty-fourth Supplemental Indenture]
/s/ Mary Miselis
Mary Miselis, as Co-Trustee
[Signature Page to the Forty-fourth Supplemental Indenture]
STATE OF NEW YORK )
) ss.
COUNTY OF NASSAU )
This instrument was acknowledged before me on this 23 day of June, 2023, by Mary Miselis, as Co-Trustee under the Mortgage and Deed of Trust dated as of October 1, 1945, with NorthWestern Corporation.
/s/ Latesha Williams
Notary Public
LATESHA M WILLIAMS
Notary Public - State of New York
NO. 01WI6319146
Qualified in Queens County
My Commission Expires Feb 9, 2027
[Acknowledgment to the Forty-fourth Supplemental Indenture]
EXHIBIT A
FORM OF BOND
(FACE OF BOND)
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED OR PLEDGED UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF SUCH ACT OR AN EXEMPTION THEREFROM IS AVAILABLE, EXCEPT UNDER CIRCUMSTANCES WHERE NEITHER SUCH REGISTRATION NOR SUCH AN EXEMPTION IS REQUIRED BY LAW.
NORTHWESTERN CORPORATION
FIRST MORTGAGE BOND, 3.875% SERIES DUE JULY 1, 2028
| | | | | |
| No. TR-[_____] | PPN: 346668 DN3 $144,660,000 |
| |
NORTHWESTERN CORPORATION, a corporation organized and existing under the laws of the State of Delaware (hereinafter called the “Company”), for value received, hereby promises to pay to U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee under the Indenture of Trust, dated as of June 1, 2023, of the City of Forsyth, Rosebud County, Montana relating to the Forsyth Bonds, as hereinafter defined (hereinafter called the “Forsyth Indenture”), or its registered assigns, on July 1, 2028, at the office or agency of the Company in the Borough of Manhattan, The City of New York, $144,660,000 dollars in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts, and to pay to the Holder hereof interest thereon from the date of first authentication of Bonds of the series herein designated, at the rate per annum of 3.875% (computed on the basis of a 360 day year of twelve 30-day months), in like coin or currency at such office or agency on January 1st and July 1st in each year, commencing January 1, 2024, until the Company’s obligation with respect to the payment of such principal shall have been discharged.
This Bond is issued by the Company pursuant to the Forty-fourth Supplemental Indenture, dated as of June 1, 2023, between the Company and the Trustees (such supplemental indenture, the “Forty-fourth Supplemental Indenture”). The terms of this Bond shall be those specified herein and pursuant to the Mortgage (as hereinafter defined), as heretofore amended and supplemented, including by the Forty-fourth Supplemental Indenture.
The provisions of this Bond are continued on the reverse hereof and such continued provisions shall for all purposes have the same effect as though set fully forth at this place.
This Bond shall not become obligatory until The Bank of New York Mellon, the Corporate Trustee under the Mortgage, or its successor thereunder, shall have signed the form of authentication certificate endorsed hereon.
IN WITNESS WHEREOF, NORTHWESTERN CORPORATION has caused this instrument to be signed in its corporate name by its Chairman of the Board or its President or one of its Vice-Presidents by his signature or a facsimile thereof, and its corporate seal to be impressed or imprinted hereon and attested by its Secretary or one of its Assistant Secretaries by his/her signature or a facsimile thereof.
Dated: _____________________
NORTHWESTERN CORPORATION
By ____________________________
Attest: ____________________________
CORPORATE TRUSTEE’S AUTHENTICATION CERTIFICATE
This Bond is one of the Bonds, of the series herein designated, described or provided for in the within-mentioned Mortgage.
THE BANK OF NEW YORK MELLON,
as Corporate Trustee
By ____________________________
Authorized Signatory
(REVERSE OF BOND)
General
This Bond is one of an issue of Bonds of the Company issuable in series and is one of a series known as its First Mortgage Bonds, 3.875% Series due July 1, 2028, all bonds of all series issued and to be issued under and equally secured by (except in so far as any sinking or other fund, established in accordance with the provisions of the Mortgage hereinafter mentioned, may afford additional security for the bonds of any particular series) a Mortgage and Deed of Trust (herein, together with any indenture supplemental thereto, called the “Mortgage”), dated as of October 1, 1945, executed by the Company to Guaranty Trust Company of New York (The Bank of New York Mellon, successor) and Arthur E. Burke (Mary Miselis, successor), as Trustees. Reference is made to the Mortgage for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Trustees in respect thereof, the duties and immunities of the Trustees and the terms and conditions upon which the bonds are, and are to be, secured and the circumstances under which additional Bonds may be issued. With the consent of the Company and to the extent permitted by and as provided in the Mortgage, the rights and obligations of the Company and/or the rights of the holders of the bonds and/or coupons and/or the terms and provisions of the Mortgage may be modified or altered by affirmative vote of the holders of at least 66 2/3% in principal amount of the bonds then outstanding under the Mortgage and, if the rights of the holders of one or more, but less than all, series of bonds then outstanding are to be affected, then also by affirmative vote of the holders of at least 66 2/3% in principal amount of the bonds then outstanding of each series of bonds so to be affected (excluding in any case bonds disqualified from voting by reason of the Company’s interest therein as provided in the Mortgage); provided that, without the consent of the holder hereof, no such modification or alteration shall, among other things, impair or affect the right of the holder to receive payment of the principal of (and premium, if any) and interest on this Bond, on or after the respective due dates expressed herein, or permit the creation of any lien equal or prior to the lien of the Mortgage or deprive the holder of the benefit of a lien on the mortgaged and pledged property.
The principal hereof may be declared or may become due prior to the maturity date hereinbefore named on the conditions, in the manner and at the time set forth in the Mortgage, upon the occurrence of a Default as in the Mortgage provided.
The Bonds of this series have been issued and delivered to, and registered in the name of, the trustee under the Forsyth Indenture (or, subject to Section 6.11 of such Indenture, its nominee). The obligation of the Company to make payments with respect to the principal of and interest on Bonds of this series shall be fully or partially, as the case may be satisfied and discharged to the extent that, at the time that any such payment shall be due, there shall be in the Bond Fund established pursuant to the Forsyth Indenture sufficient available funds to fully or partially pay the then due principal of and interest on the City of Forsyth, Rosebud County, Montana, Pollution Control Revenue Refunding Bonds (North Western Corporation Colstrip Project), Series 2023 (herein, the “Forsyth Bonds”). The Corporate Trustee may conclusively presume that the obligation of the Company to make payments with respect to the principal of and interest on the Bonds of this series shall have been fully satisfied and discharged unless and until the Corporate Trustee shall have received a written notice from the trustee under the Forsyth Indenture, signed
by its President, a Vice President or a Trust Officer, stating (i) that there are not sufficient available funds in such Bond Fund to make timely payment of the principal of or interest on the Forsyth Bonds, and (ii) the amount of funds required to make such payment. The Corporate Trustee may conclusive presume the statements contained in any such notice to be correct.
Upon payment of the principal or premium, if any, or interest on the Forsyth Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with the Forsyth Indenture, Bonds of this series in a principal amount equal to the principal amount of such Forsyth Bonds, shall, to the extent of such payment of principal, premium, if any, or interest, be deemed fully-paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged.
This Bond is not transferable except to any successor trustee under the Forsyth Indenture. Any such transfer is to be made as prescribed in the Mortgage by the Holder in person, or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York, upon surrender and cancellation of this Bond, and upon payment, if the Company shall require it, of the transfer charges provided for in the Forty-fourth Supplemental Indenture hereinafter referred to, and, thereupon, a new fully registered Bond of the same series for a like principal amount will be issued to the transferee in exchange herefor as provided in the Mortgage; provided that, this Bond shall also be subject to the restrictions on transfer and exchange that appear above. The Company and the Trustees may deem and treat the person in whose name this Bond is registered as the absolute owner hereof for the purpose of receiving payment and for all other purposes and neither the Company nor the Trustees shall be affected by any notice to the contrary.
In the manner prescribed in the Mortgage, any Bonds of this series, upon surrender thereof, for cancellation, at the office or agency of the Company in the Borough of Manhattan, The City of New York, are exchangeable for a like aggregate principal amount of registered Bonds of the same series of other authorized denominations.
The Bonds of this series are subject to redemption as provided in the Forty-fourth Supplemental Indenture.
As provided in the Mortgage, the Company shall not be required to make transfers or exchanges of Bonds of any series for a period of ten days next preceding any interest payment due for Bonds of said series, or next preceding any designation of Bonds of said series to be redeemed.
No recourse shall be had for the payment of the principal of or interest on this Bond against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director of the Company or of any predecessor or successor corporation, as such, either directly or through the Company or any predecessor or successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors being released by the holder or owner hereof by the acceptance of this Bond and being likewise waived and released by the terms of the Mortgage.
Capitalized terms used in this Bond shall have the meanings ascribed to them in the Forty-fourth Supplemental Indenture or in the Mortgage.
INSTRUMENT OF ASSIGNMENT AND TRANSFER
FOR VALUE-RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto
Identifying Number of Assignee _________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
(Please print or typewrite name and address,
including zip code of Assignee)
the within Bond and all rights thereunder, hereby irrevocably constituting and appointing _____ attorney to transfer said Bond on the books of the Company, with full power of substitution in the premises.
Dated: ____________________________
___________________________________
Name:
NOTICE: The signature to this assignment must correspond with the name as written upon the first page of the within instrument in every particular, without alteration or enlargement or any change whatsoever.
__________________________
Signature Guarantee
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
v3.23.2
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NorthWestern Energy (NASDAQ:NWE)
과거 데이터 주식 차트
부터 4월(4) 2024 으로 5월(5) 2024
NorthWestern Energy (NASDAQ:NWE)
과거 데이터 주식 차트
부터 5월(5) 2023 으로 5월(5) 2024
