======================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-A/A-1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NORTHWESTERN CAPITAL FINANCING I
(Exact Name of Registrant as Specified in its Charter)
Delaware Applied For
(State of Incorporation or (I.R.S. Employer Identification
Organization) Number)
c/o NorthWestern Corporation
125 S. Dakota Avenue, Suite 1100
Sioux Falls, South Dakota 57104
(Address of principal executive offices) (Zip Code)
NORTHWESTERN CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 46-0172280
(State of Incorporation or Organization) (I.R.S. Employer
Identification Number)
125 S. Dakota Avenue, Suite 1100
Sioux Falls, South Dakota 57104
(Address of principal executive offices) (Zip Code)
If this Form relates to the If this Form relates to the
registration of a class of registration of a class of
debt securities and is debt securities and is to
effective upon filing pursuant become effective
to General Instruction A(c)(1) simultaneously with the
please check the following effectiveness of a concurrent
box. [ ] registration statement under
the Securities Act of 1933
pursuant to General
Instruction A(c)(2) please
check the following box. [ ]
Securities Act registration number to which this form relates:
333-58491 and 333-58491-01<PAGE>
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
------------------------ -----------------------------
NorthWestern Capital Financing The New York Stock Exchange,
I 7.20% Trust Preferred Inc.
Capital Securities (and the
Guarantee by NorthWestern
Corporation with respect
thereto)
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
======================================================================<PAGE>
This registration statement on Form 8-A/A amends and restates the
registration statement on Form 8-A filed by NorthWestern Capital
Financing I on November 16, 1998, with respect to its Trust Preferred
Capital Securities.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The securities to be registered hereby are 7.20% Trust Preferred
Capital Securities (the "Preferred Securities") of NorthWestern
Capital Financing I ("NorthWestern Capital"), a Delaware business
trust. The Preferred Securities represent undivided beneficial
interests in the assets of NorthWestern Capital and are guaranteed by
NorthWestern Corporation ("NorthWestern"), a Delaware corporation, to
the extent set forth in the Preferred Securities Guarantee Agreement
by NorthWestern to Wilmington Trust Company, as Preferred Guarantee
Trustee (the "Guarantee"). The Preferred Securities and the Guarantee
are described in the Prospectus dated July 14, 1998, as supplemented
by the Prospectus Supplement dated November 10, 1998 of NorthWestern
and NorthWestern Capital, which is filed as an exhibit hereto and is
incorporated by reference herein.
ITEM 2. EXHIBITS
1(a) The Prospectus and the Incorporated by reference
Prospectus Supplement. to the filing made under
Rule 424(b)(5) by
NorthWestern and
NorthWestern Capital on
November 12, 1998.
4(a) Certificate of Trust of Incorporated by reference
NorthWestern Capital to Exhibit 4(b)(11) to the
Financing I Registration Statement on
Form S-3 of NorthWestern
and NorthWestern Capital as
filed with the Securities
and Exchange Commission on
July 2, 1998, Registration
Nos. 333-58491 and 333-
58491-01.
4(b) Declaration of Trust of Incorporated by reference
NorthWestern Capital to Exhibit 4(b)(14) to the
Financing I Registration Statement on
Form S-3 of NorthWestern
and NorthWestern Capital as
filed with the Securities
and Exchange Commission on
July 2, 1998, Registration
Nos. 333-58491 and 333-
58491-01.<PAGE>
4(c) Subordinated Debt Incorporated herein by
Securities Indenture reference to Exhibit 4(f)
dated August 1, 1995 of Form 8-K of NorthWestern
between NorthWestern dated August 30, 1995,
and The Chase Manhattan Commission File No. 0-692
Bank
4(d) First Supplemental Incorporated herein by
Indenture to reference to Exhibit 4(g)
Subordinated Debt of Form 8-K of NorthWestern
Securities Indenture dated August 30, 1995,
dated August 1, 1995 Commission File No. 0-692.
4(e) Amended and Restated Filed herewith.
Declaration of Trust of
NorthWestern Capital
Financing I
4(f) Second Supplemental Filed herewith.
Indenture
4(g) Preferred Securities Filed herewith.
Guarantee Agreement<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, each of the Registrants has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
NORTHWESTERN CAPITAL FINANCING I
(Registrant)
By: NorthWestern Corporation, as Sponsor
By: /s/ Daniel K. Newell
--------------------------------
Daniel K. Newell,
Vice-President Finance
and Chief Financial
Officer
NORTHWESTERN CORPORATION
(Registrant)
By: /s/ Daniel K. Newell
-------------------------------------
Daniel K. Newell,
Vice-President Finance and
Chief Financial Officer<PAGE>
EXHIBIT INDEX
1(a) The Prospectus and the Prospectus Supplement (incorporated by
reference to the filing made under Rule 424(b)(5) by NorthWestern
and NorthWestern Capital on November 12, 1998.
4(a) Certificate of Trust of NorthWestern Capital Financing I
(incorporated by reference to Exhibit 4(b)(11) to the
Registration Statement of NorthWestern and NorthWestern Capital
filed on Form S-3, as filed with the Securities and Exchange
Commission on July 2, 1998, Registration Nos. 333-58491 and 333-
58491-01).
4(b) Declaration of Trust of NorthWestern Capital Financing I
(incorporated by reference to Exhibit 4(b)(14) to the
Registration Statement of NorthWestern and NorthWestern Capital
filed on Form S-3, as filed with the Securities and Exchange
Commission on July 2, 1998, Registration No. 333-58491 and 333-
58491-01).
4(c) Subordinated Debt Securities Indenture dated August 1, 1995
between NorthWestern and The Chase Manhattan Bank (incorporated
by reference to Exhibit 4(f) of Form 8-K dated August 30, 1995,
Commission File No. 0-692).
4(d) First Supplemental Indenture to Subordinated Debt Securities
Indenture dated August 1, 1995 (incorporated by reference to
Exhibit 4(g) of Form 8-K dated August 30, 1995, Commission File
No. 0-692).
4(e) Amended and Restated Declaration of Trust of NorthWestern Capital
Financing I.
4(f) Second Supplemental Indenture.
4(g) Preferred Securities Guarantee Agreement.
U:\USER\DOCPROC\EDGAR\MILLER\FORM-8-A<PAGE>
EXHIBIT 4(e)
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NORTHWESTERN CAPITAL FINANCING I<PAGE>
NORTHWESTERN CAPITAL FINANCING I
CROSS-REFERENCE TABLE FOR THE
AMENDED AND RESTATED DECLARATION OF TRUST
SECTION OF SECTION OF
TRUST INDENTURE AMENDED AND RESTATED
ACT OF 1939, AS AMENDED DECLARATION OF TRUST
----------------------- --------------------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 5.6
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.3(c)
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
Section 314(a) . . . . . . . . . . . . . . . . . . . . . 2.4, 3.6(j)
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 2.4, 2.5
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 2.4, 2.5
(c)(3) . . . . . . . . . . . . . . . . . . . . . . 2.4, 2.5
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . 3.9, 3.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(b)
(e) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 3.8(h)
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . 2.1(c)
_____________
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Amended and Restated Declaration
of Trust.
ii<PAGE>
TABLE OF CONTENTS
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PAGE
----
ARTICLE I NTERPRETATION AND DEFINITIONS. . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . 1
ARTICLE II TRUST INDENTURE ACT. . . . . . . . . . . . . . . . . . 7
SECTION 2.1 Trust Indenture Act; Application . . . . . . . 7
SECTION 2.2 Lists of Holders of Securities . . . . . . . . 7
SECTION 2.3 Reports by the Property Trustee . . . . . . . . 8
SECTION 2.4 Periodic Reports to Property Trustee . . . . . 8
SECTION 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . . 8
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . 8
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . 10
ARTICLE III ORGANIZATION . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.1 Name . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.2 Office . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.4 Authority . . . . . . . . . . . . . . . . . . . 11
SECTION 3.5 Title to Property of the Trust . . . . . . . . 12
SECTION 3.6 Powers and Duties of the Regular Trustees . . . 12
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees . . . . . . . . . . . . . . . . . . . 14
SECTION 3.8 Powers and Duties of the Property Trustee . . . 15
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee . . . . . . . . . . . . . . . 17
SECTION 3.10 Certain Rights of Property Trustee . . . . . . 19
SECTION 3.11 Delaware Trustee . . . . . . . . . . . . . . . 21
SECTION 3.12 Execution of Documents . . . . . . . . . . . . 21
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 21
SECTION 3.14 Duration of Trust . . . . . . . . . . . . . . . 21
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . . 22
ARTICLE IV SPONSOR . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.1 Sponsor s Purchase of Common Securities . . . . 23
SECTION 4.2 Responsibilities of the Sponsor . . . . . . . . 23
SECTION 4.3 Expenses . . . . . . . . . . . . . . . . . . . 24
ARTICLE V TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.1 Number of Trustees . . . . . . . . . . . . . . 25
SECTION 5.2 Delaware Trustee . . . . . . . . . . . . . . . 25
SECTION 5.3 Property Trustee; Eligibility . . . . . . . . . 25
SECTION 5.4 Qualifications of Regular Trustees and
Delaware Trustee Generally . . . . . . . . . . 26
SECTION 5.5 Initial Trustees . . . . . . . . . . . . . . . 26
SECTION 5.6 Appointment, Removal and Resignation of
Trustees . . . . . . . . . . . . . . . . . . . 27
SECTION 5.7 Vacancies among Trustees . . . . . . . . . . . 28
SECTION 5.8 Effect of Vacancies . . . . . . . . . . . . . . 29
iii<PAGE>
SECTION 5.9 Meetings . . . . . . . . . . . . . . . . . . . 29
SECTION 5.10 Delegation of Power . . . . . . . . . . . . . . 29
ARTICLE VI DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . 30
SECTION 6.1 Distributions . . . . . . . . . . . . . . . . . 30
ARTICLE VII ISSUANCE OF SECURITIES . . . . . . . . . . . . . . . . 30
SECTION 7.1 General Provisions Regarding Securities . . . . 30
SECTION 7.2 Rights of Holders . . . . . . . . . . . . . . . 31
SECTION 7.3 Subordination of Common Securities . . . . . . 31
ARTICLE VIII TERMINATION OF TRUST . . . . . . . . . . . . . . . . . 32
SECTION 8.1 Termination of Trust . . . . . . . . . . . . . 32
ARTICLE IX TRANSFER OF INTERESTS . . . . . . . . . . . . . . . . . 33
SECTION 9.1 Transfer of Securities . . . . . . . . . . . . 33
SECTION 9.2 Transfer of Certificates . . . . . . . . . . . 33
SECTION 9.3 Deemed Security Holders . . . . . . . . . . . . 32
SECTION 9.4 Book Entry Interests . . . . . . . . . . . . . 34
SECTION 9.5 Notices to Clearing Agency . . . . . . . . . . 34
SECTION 9.6 Appointment of Successor Clearing Agency . . . 35
SECTION 9.7 Definitive Preferred Security Certificates . . 35
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . . . 36
ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES
AND OTHERS . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 10.1 Liability . . . . . . . . . . . . . . . . . . . 37
SECTION 10.2 Exculpation . . . . . . . . . . . . . . . . . . 37
SECTION 10.3 Fiduciary Duty . . . . . . . . . . . . . . . . 38
SECTION 10.4 Indemnification . . . . . . . . . . . . . . . . 39
SECTION 10.5 Outside Businesses . . . . . . . . . . . . . . 39
ARTICLE XI ACCOUNTING . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . . . . . 40
SECTION 11.2 Certain Accounting Matters . . . . . . . . . . 40
SECTION 11.3 Banking . . . . . . . . . . . . . . . . . . . . 41
SECTION 11.4 Withholding . . . . . . . . . . . . . . . . . . 41
ARTICLE XII AMENDMENTS AND MEETINGS . . . . . . . . . . . . . . . . 41
SECTION 12.1 Amendments . . . . . . . . . . . . . . . . . . 41
SECTION 12.2 Meetings of the Holders of Securities; Action
by Written Consent . . . . . . . . . . . . . . 43
ARTICLE XIII REPRESENTATIONS OF PROPERTY TRUSTEE . . . . . . . . . 45
SECTION 13.1 Representations and Warranties of Property
Trustee . . . . . . . . . . . . . . . . . . . . 45
ARTICLE XIV MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 46
SECTION 14.1 Notices . . . . . . . . . . . . . . . . . . . . 46
SECTION 14.2 Governing Law . . . . . . . . . . . . . . . . . 47
SECTION 14.3 Intention of the Parties . . . . . . . . . . . 47
SECTION 14.4 Headings . . . . . . . . . . . . . . . . . . . 47
SECTION 14.5 Successors and Assigns . . . . . . . . . . . . 47
SECTION 14.6 Partial Enforceability . . . . . . . . . . . . 47
iv<PAGE>
SECTION 14.7 Counterparts . . . . . . . . . . . . . . . . . 47
EXHIBIT A Form of Terms of Trust Preferred Capital Securities
and Trust Common Capital Securities . . . . . . . . A-1
EXHIBIT B Specimen of Debenture . . . . . . . . . . . . . . . . B-1
EXHIBIT C Underwriting Agreement . . . . . . . . . . . . . . . C-1
v<PAGE>
LIST OF DEFINED TERMS
---------------------
PAGE
----
10% in liquidation amount of the Securities . . . . . . . . . . . . 6
66-2/3% in liquidation amount of the Securities . . . . . . . . . . 6
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . . . . . . 2
Book Entry Interest . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Trust Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Clearing Agency Participant . . . . . . . . . . . . . . . . . . . . 2
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Securities Guarantee . . . . . . . . . . . . . . . . . . . . 2
Common Security . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Security Certificate . . . . . . . . . . . . . . . . . . . . 3
Covered Person . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debenture Issuer . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Definitive Preferred Security Certificates . . . . . . . . . . . . 3
Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 3
Direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Certificate . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indemnified Person . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Investment Company . . . . . . . . . . . . . . . . . . . . . . . . 4
Investment Company Act . . . . . . . . . . . . . . . . . . . . . . 4
Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
List of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Majority in liquidation amount of the Securities . . . . . . . . . 4
Officers Certificate . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Preferred Securities Guarantee . . . . . . . . . . . . . . . . . . 5
Preferred Security . . . . . . . . . . . . . . . . . . . . . . . . 5
Preferred Security Beneficial Owner . . . . . . . . . . . . . . . . 5
Preferred Security Certificate . . . . . . . . . . . . . . . . . . 5
Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 5
Property Trustee Account . . . . . . . . . . . . . . . . . . . . . 5
Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Regular Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Related Party . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . 5
vi<PAGE>
Rule 3a-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Successor Entity . . . . . . . . . . . . . . . . . . . . . . . . . 6
Successor Securities . . . . . . . . . . . . . . . . . . . . . . . 6
Super Majority . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Treasury Regulations . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Underwriting Agreement . . . . . . . . . . . . . . . . . . . . . . 7
vii<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NORTHWESTERN CAPITAL FINANCING I
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated
and effective as of November 18, 1998, by the undersigned trustees
(together with all other Persons from time to time duly appointed and
serving as trustees in accordance with the provisions of this
Declaration, the "Trustees"), NorthWestern Corporation, a Delaware
corporation, as trust sponsor (the "Sponsor"), and the holders, from
time to time, of undivided beneficial interests in the assets of the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established a trust (the
"Trust") under the Delaware Business Trust Act (the "Business Trust
Act") pursuant to a Declaration of Trust dated as of June 30, 1998
(the "Original Declaration"), and a Certificate of Trust filed with
the Secretary of State of the State of Delaware on July 1, 1998 for
the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust
and investing the proceeds thereof in certain Debentures (as defined
herein) of the Debenture Issuer (as defined herein); and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original
Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act
and that this Declaration constitute the governing instrument of such
business trust, the Trustees declare that all assets contributed to
the Trust will be held in trust for the benefit of the holders, from
time to time, of the securities representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the
provisions of this Declaration.
I
INTERPRETATION AND DEFINITIONS
1.1 Definitions.
In this Declaration, unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned
to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended
from time to time; <PAGE>
(d) all references in this Declaration to Articles and Sections
and Exhibits are to Articles and Sections of and Exhibits to
this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise
defined in this Declaration or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405
promulgated under the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and
made through book entries by a Clearing Agency as described in Section
9.4.
"Business Day" means any day other than Saturday, Sunday or any other
day on which banking institutions in New York, New York are authorized
or required by applicable law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in whose
nominee s name shall be registered a Global Certificate and which
shall undertake to effect book entry transfers and pledges of the
Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1.
2<PAGE>
"Common Securities Guarantee" means the guarantee agreement to be
dated as of November 18, 1998 of the Sponsor in respect of the Common
Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the
form of Annex II to Exhibit A.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or
(ii) the Trust s Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means NorthWestern Corporation in its capacity as
issuer of the Debentures.
"Debenture Trustee" means The Chase Manhattan Bank, as trustee under
the Indenture, until a successor is appointed thereunder, and
thereafter means such successor trustee.
"Debentures" means the series of Debentures entitled "7.20% Junior
Subordinated Deferrable Interest Debentures due 2038" to be issued to
the Property Trustee by the Debenture Issuer under the Indenture, a
specimen certificate of which is attached as Exhibit B.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Preferred Security Certificates" has the meaning set forth
in Section 9.4.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing
in respect of the Debentures.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within
the meaning of the Business Trust Act.
3<PAGE>
"Indemnified Person" means any Trustee, any Affiliate of any Trustee,
or any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee, or any employee
or agent of the Trust or its Affiliates.
"Indenture" means the Indenture dated as of August 1, 1995, between
the Debenture Issuer and The Chase Manhattan Bank (as successor to The
Chase Manhattan Bank, N.A.), as trustee, as supplemented by the First
Supplemental Indenture dated as of August 1, 1995 and the Second
Supplemental Indenture dated as of November 15, 1998, pursuant to
which the Debentures are to be issued.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"List of Holders" has the meaning set forth in Section 2.2.
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Securities and by the Trust Indenture
Act, a vote by the Holder(s) of Securities voting together as a single
class or, as the context may require, a vote by the Holder(s) of the
Preferred Securities or the Holder(s) of the Common Securities, each
voting separately as a class, representing a majority of the
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are
determined) of all Securities of such class.
"Officers Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any
Officers Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers
Certificate has read the covenant or condition and the
definition relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the
Officers Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer s opinion, is necessary
to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
4<PAGE>
"Paying Agent" has the meaning specified in Section 3.8(h).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company,
limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any
other entity of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement to be
dated as of November 18, 1998 of the Sponsor in respect of the
Preferred Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book
Entry Interest, as reflected on the books of the Clearing Agency, or
on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such
Clearing Agency).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Annex I to Exhibit A.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section
3.8(c).
"Prospectus" has the meaning set forth in the terms of the Securities
set forth in Exhibit A.
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Regular Trustee" means any Trustee other than the Property Trustee
and the Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person
that owns, directly or indirectly, 100% of the outstanding voting
securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
vice-president, any assistant vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust
officer or assistant trust officer or any other officer in the
corporate trust department of the Property Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of that officer s knowledge of and familiarity with
the particular subject.
5<PAGE>
"Rule 3a-7" means Rule 3a-7 promulgated under the Investment Company
Act or any successor rule thereunder.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"66-2/3% in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust
Indenture Act, a vote by the Holder(s) of the Securities voting
together as a single class or, as the context may require, a vote by
the Holder(s) of the Preferred Securities or the Holder(s) of the
Common Securities, each voting separately as a class, representing 66
2/3% of the liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) of all Securities of such class.
"Sponsor" means NorthWestern Corporation, a Delaware corporation, or
any successor entity in a merger, consolidation or amalgamation, in
its capacity as sponsor of the Trust.
"Successor Entity" has the meaning set forth in Section 3.15.
"Successor Securities" has the meaning set forth in Section 3.15.
"Super Majority" has the meaning set forth in Section 5(b) of the
terms of Securities, as set forth in Exhibit A.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust
Indenture Act, the vote by the Holder(s) of the Securities voting
together as a single class or, as the context may require, the vote by
the Holder(s) of the Preferred Securities or the Holder(s) of the
Common Securities, each voting separately as a class, representing 10%
of the liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) of all Securities of such class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time
to time (including corresponding provisions of succeeding
regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in
office in accordance with the terms hereof, and all other Persons who
may from time to time be duly appointed, qualified and serving as
Trustees in accordance with the provisions hereof, and references
herein to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.
6<PAGE>
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement for the
offering and sale of the Preferred Securities in the form of Exhibit
C.
II
TRUST INDENTURE ACT
2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this
Declaration and shall, to the extent applicable, be governed
by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as
equity securities representing undivided beneficial
interests in the assets of the Trust.
2.2 Lists of Holders of Securities.
(a) Each of the Sponsor, the Debenture Issuer and the Regular
Trustees on behalf of the Trust shall provide the Property
Trustee (i) within 14 days after each record date for
payment of Distributions, a list, in such form as the
Property Trustee may reasonably require, of the names and
addresses of the Holders of the Securities (a "List of
Holders") as of such record date, provided that none of the
Sponsor, the Debenture Issuer or the Regular Trustees on
behalf of the Trust shall be obligated to provide such List
of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property
Trustee by the Sponsor, the Debenture Issuer and the Regular
Trustees on behalf of the Trust, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request
for a List of Holders as of a date no more than 14 days
before such List of Holders is given to the Property
Trustee. The Property Trustee shall preserve, in as current
a form as is reasonably practicable, all information
contained in the Lists of Holders given to it or which it
receives in the capacity as Paying Agent (if acting in such
capacity) provided that the Property Trustee may destroy any
7<PAGE>
List of Holders previously given to it on receipt of a new
List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture
Act.
2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the
form and in the manner provided by Section 313 of the Trust Indenture
Act. The Property Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
2.4 Periodic Reports to Property Trustee.
Each of the Sponsor, the Debenture Issuer and the Regular Trustees on
behalf of the Trust shall provide to the Property Trustee such
documents, reports and information as required by Section 314 of the
Trust Indenture Act (if any) and the compliance certificate required
by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act.
2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor, the Debenture Issuer and the Regular Trustees on
behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any, provided
for in this Declaration that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers Certificate.
2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities may, by vote, on behalf of the Holders
of all of the Preferred Securities, waive any past Event of
Default in respect of the Preferred Securities and its
consequences, provided that, if the Event of Default arises
out of an event of default under the Indenture:
(i) which is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be
waivable; or
(ii) which requires the consent or vote of all or a Super
Majority of the holders of the Debentures to be waived
under the Indenture, the Event of Default under the
Declaration may only be waived by the vote of all of
the Holders of the Preferred Securities or the Holders
of at least the proportion in liquidation amount of the
Preferred Securities as represents the relevant Super
8<PAGE>
Majority of the aggregate principal amount of the
Debentures outstanding.
Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred
Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or an
Event of Default with respect to the Preferred Securities or
impair any right consequent thereon. Any waiver by the
Holders of the Preferred Securities of an Event of Default
with respect to the Preferred Securities shall also be
deemed to constitute a waiver by the Holders of the Common
Securities of any such Event of Default with respect to the
Common Securities for all purposes of this Declaration
without any further act, vote or consent of the Holders of
the Common Securities.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of
all of the Common Securities, waive any past Event of
Default with respect to the Common Securities and its
consequences, provided that, if the Event of Default arises
out of an event of default under the Indenture:
(i) which is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as
provided below in this Section 2.6(b), the Event of
Default under the Declaration shall also not be
waivable; or
(ii) which requires the consent or vote of all or a Super
Majority of the Holders of the Debentures to be waived
under the Indenture, except where the Holders of the
Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the
Declaration may only be waived by the vote of all of
the Holders of the Common Securities or the Holders of
at least the proportion in liquidation amount of the
Common Securities as represents the relevant Super
Majority of the aggregate principal amount of the
Debentures outstanding.
Each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default
with respect to the Common Securities and its consequences
until all Events of Default with respect to the Preferred
Securities have been cured, waived or otherwise eliminated,
and until such Events of Default have been so cured, waived
or otherwise eliminated, the Property Trustee will be deemed
to be acting solely on behalf of the Holders of the
Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Property
9<PAGE>
Trustee in accordance with the terms of the Securities.
Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such default shall cease to exist and
any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of
Default with respect to the Common Securities or impair any
right consequent thereon.
(c) A waiver of an event of default under the Indenture by the
Property Trustee at the direction of the Holders of the
Preferred Securities constitutes a waiver of the
corresponding Event of Default under this Declaration.
2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders of the Securities,
notices of all defaults with respect to the Securities known
to the Property Trustee, unless such defaults have been
cured before the giving of such notice (the term "defaults"
for the purposes of this Section 2.7(a) being hereby defined
to be an Event of Default as defined in the Indenture, not
including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein;
provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the
Debentures or in the payment of any sinking fund installment
established for the Debentures, the Property Trustee shall
be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the
Property Trustee in good faith determines that the
withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 501(a)(1) and 501(a)(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or a Responsible Officer
charged with the administration of the Declaration
shall have obtained written notice of.
10<PAGE>
III
ORGANIZATION
3.1 Name.
The Trust is named "NorthWestern Capital Financing I", as such name
may be modified from time to time by the Regular Trustees following
written notice to the Holders of the Securities. The Trust s
activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
3.2 Office.
The address of the principal office of the Trust is c/o NorthWestern
Corporation, 125 S. Dakota Avenue, Suite 1100, Sioux Falls, South
Dakota 57104. On ten Business Days written notice to the Holders of
the Securities, the Regular Trustees may designate another principal
office. The name and business address of the Delaware Trustee in the
State of Delaware is Wilmington Trust Company, Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890, or such other
address in the State of Delaware as the Delaware Trustee may designate
by written notice to the Holders of the Securities, the Sponsor, the
Property Trustee and the Regular Trustees.
3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell the Securities and use the proceeds from such sales to acquire
the Debentures, and (b) except as otherwise limited herein, to engage
in only those other activities necessary or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived
from investments, pledge any of its assets or otherwise undertake (or
permit to be undertaken) any activity that would (i) cause the Trust
not to be classified for United States federal income tax purposes as
a grantor trust or (ii) cause each Holder of Securities not to be
treated as owning an undivided beneficial interest in the Debentures
at any time the Securities are outstanding.
3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall
have exclusive and complete authority to carry out the purposes of the
Trust. An action taken by the Regular Trustees in accordance with
their powers shall constitute the act of and serve to bind the Trust,
and an action taken by the Property Trustee in accordance with its
powers shall constitute the act of and serve to bind the Trust. In
dealing with the Trustees acting on behalf of the Trust, no Person
shall be required to inquire into the authority of the Trustees to
bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth
in this Declaration.
11<PAGE>
3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Trustee Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in
the Trust. The Holders shall not have legal title to any part of the
assets of the Trust, but shall have an undivided beneficial interest
in the assets of the Trust.
3.6 Powers and Duties of the Regular Trustees.
Subject to Section 4.2, the Regular Trustees shall have the exclusive
power, duty and authority to cause the Trust to engage in the
following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided,
however, that the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common
Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities, and the
issuance of the Securities shall be limited to a one-time,
simultaneous issuance of both the Preferred Securities and
the Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, to execute and deliver any documents required by
any Clearing Agency in connection with the issuance of a
Global Certificate;
(c) to acquire the Debentures with the proceeds of the sale of
the Preferred Securities and the Common Securities;
provided, however, that the Regular Trustees shall cause
legal title to the Debentures to be held of record in the
name of the Property Trustee for the benefit of the Holders
of the Preferred Securities and the Holders or Common
Securities;
(d) to give the Debenture Issuer, the Sponsor and the Property
Trustee prompt written notice of the occurrence of a Tax
Event or an Investment Company Event (each as defined in the
Indenture); provided that the Regular Trustees shall consult
with the Debenture Issuer, the Sponsor and the Property
Trustee before taking or refraining from taking any action
in relation to a Tax Event or an Investment Company Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established,
including and with respect to, for the purposes of Section
316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders
of Common Securities as to such actions and applicable
record dates;
12<PAGE>
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of
the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action or otherwise adjust claims or demands
of or against the Trust ("Legal Action"), unless pursuant to
Section 3.8(e), the Property Trustee has the exclusive power
to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may
be designated as officers with titles) and managers,
contractors, advisors and consultants and pay reasonable
compensation for such services;
(i) to cause the Trust to comply with the Trust s obligations
under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which
certificate may be executed by any Regular Trustee;
(k) to incur expenses which are necessary or incidental to carry
out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer
of its election (i) to defer payments of interest on the
Debentures by extending the interest payment period under
the Indenture or (ii) to shorten the stated maturity of the
Debentures pursuant to the Indenture;
(n) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust
in all matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for
the preservation and the continuation of the Trust s valid
existence, rights, franchises and privileges as a statutory
business trust under the laws of the State of Delaware and
of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of
the Securities or to enable the Trust to effect the purposes
for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration
or with applicable law, that the Regular Trustees determine
in their discretion to be necessary or desirable in carrying
out the activities of the Trust as set out in this Section
3.6, including, but not limited to:
13<PAGE>
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment
Company Act;
(ii) causing the Trust not to be characterized for United
States federal income tax purposes as an association
taxable as a corporation or a partnership but for each
Holder of Securities to be treated as owning an
undivided beneficial interest in the Debentures; and
(iii) cooperating with the Debenture Issuer to ensure
that the Debentures will be treated as
indebtedness of the Debenture Issuer for United
States federal income tax purposes, provided that
such action does not adversely affect the
interests of Holders; and
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be
filed with respect to the Trust to be duly prepared and
filed by the Regular Trustees, on behalf of the Trust.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Regular
Trustees shall not take any action that is inconsistent with the
purposes and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in
Section 3.8.
3.7 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the Property Trustee)
shall not engage in any activity other than as required or authorized
by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall not:
(a) invest any proceeds received by the Trust from holding the
Debentures but shall distribute all such proceeds to the
Holders of the Securities pursuant to the terms of this
Declaration and of the Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans or incur any indebtedness;
(e) unless otherwise provided in this Declaration, possess any
power or otherwise act in such a way as to vary the Trust
assets or the terms of the Securities in any way whatsoever;
14<PAGE>
(f) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other
than the Securities; or
(g) (i) direct the time, method and place of exercising any
trust or power conferred upon the Debenture Trustee with
respect to the Debentures, (ii) waive any past default that
is waivable under Section 513 of the Indenture, (iii)
exercise any right to rescind or annul any declaration that
the principal of all the Debentures shall be due and payable
or (iv) consent to any amendment, modification or
termination of the Indenture or the Debentures, where such
consent shall be required, unless the Trust shall have
received an opinion of counsel to the effect that such
modification will not cause the Trust to fail to be
classified as a grantor trust for United States federal
income tax purposes.
3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held
of record in the name of the Property Trustee in trust for
the benefit of the Holders of the Securities. The right,
title and interest of the Property Trustee to the Debentures
shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section
5.6. Such vesting and cessation of title shall be effective
whether or not conveyancing documents with regard to the
Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the
Delaware Trustee (if the Property Trustee does not also act
as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account")
in the name of and under the exclusive control of the
Property Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds
made in respect of the Debentures held by the Property
Trustee, deposit such funds into the Property Trustee
Account and make payments to the Holders of the
Preferred Securities and the Holders of the Common
Securities from the Property Trustee Account in
accordance with Section 6.1. Funds in the Property
Trustee Account shall be held uninvested until
disbursed in accordance with this Declaration. The
Property Trustee Account shall be an account that is
maintained with a banking institution the rating on
whose long term unsecured indebtedness is at least
equal to the rating assigned to the Preferred
Securities by a "nationally recognized statistical
15<PAGE>
rating organization", as that term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of
the Preferred Securities and the Common Securities to
the extent the Debentures are redeemed or mature; and
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the
Preferred Securities and the Common Securities,
engage in such ministerial activities as shall be
necessary or appropriate to effect the
distribution of the Debentures to Holders of
Securities.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property
Trustee pursuant to the terms of the Securities.
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default or
the Property Trustee s duties and obligations under this
Declaration or the Trust Indenture Act.
(f) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders
of the Securities pursuant to the terms of the
Securities; or
(ii) a successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section
5.6.
(g) The Property Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of
Debentures under the Indenture and, if an Event of Default
occurs and is continuing, the Property Trustee shall, for
the benefit of the Holders of the Securities, enforce its
rights as holder of the Debentures subject to the rights of
the Holders pursuant to the terms of the Securities.
(h) The Property Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption
payments or liquidation payments on behalf of the Trust with
respect to all Securities and may remove any Paying Agent at
any time and appoint a successor Paying Agent or additional
Paying Agents at any time. Any Paying Agent shall comply
with Section 317(b) of the Trust Indenture Act.
16<PAGE>
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of
the Regular Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner which is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Property
Trustee shall not take any action which is inconsistent with the
purposes and functions of the Trust set out in Section 3.3.
3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing or waiver of all Events of
Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this
Declaration and no implied covenants shall be read into this
Declaration against the Property Trustee. In case an Event
of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Property Trustee shall
exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own
negligent action, its own negligent failure to act or its
own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express
provisions of this Declaration and the Property
Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read
into this Declaration against the Property
Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Property Trustee and
conforming to the requirements of this
Declaration; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
17<PAGE>
to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer
of the Property Trustee, unless it shall be proved that
the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property 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
Holders of not less than a Majority in liquidation
amount of the Securities at the time outstanding
relating to the time, method and place of conducting
any proceeding for any remedy available to the Property
Trustee or exercising any trust or power conferred upon
the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of
any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it
under the terms of this Declaration or adequate
indemnity against such risk or liability is not
reasonably assured to it;
(v) the Property Trustee s sole duty with respect to the
custody, safe keeping and physical preservation of the
Debentures and the Property Trustee Account shall be to
deal with such property in a similar manner as the
Property Trustee deals with similar property for its
own account, subject to the protections and limitations
on liability afforded to the Property Trustee under
this Declaration, the Trust Indenture Act and Rule
3a-7;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the
payment of any taxes or assessments levied thereon or
in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it and shall not be
required to segregate money held by the Property
Trustee from other funds held by it except in relation
to the Property Trustee Account maintained pursuant to
Section 3.8(c)(i) or as otherwise required by law; and
18<PAGE>
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or
the Sponsor with their respective duties under this
Declaration, nor shall the Property Trustee be liable
for the default or misconduct of the Regular Trustees
or the Sponsor.
3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be
sufficiently evidenced by a Direction or an Officers
Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or
omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its
part and, if the Trust is excluded from the definition
of an Investment Company solely by means of Rule 3a-7,
subject to the requirements of Rule 3a-7, request and
rely upon an Officers Certificate which, upon receipt
of such request, shall be promptly delivered by the
Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument
(including any financing or continuation statement or
any tax or securities) (or any rerecording, refiling or
re-registration thereof);
(v) the Property Trustee may consult with counsel (which
counsel may be counsel to the Sponsor or any of its
Affiliates and may include any of its employees), and
the written advice or opinion of such counsel with
respect to legal matters shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion,
and the Property Trustee shall have the right at any
time to seek instructions concerning the administration
19<PAGE>
of this Declaration from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the
Property Trustee adequate security and indemnity, which
would satisfy a reasonable person in the position of
the Property Trustee, against the costs, expenses
(including attorneys fees and expenses) and
liabilities that might be incurred by it in complying
with such request or direction, including such
reasonable advances as may be requested by the Property
Trustee, provided that nothing contained in this
Section 3.10(a)(vi) shall be taken to relieve the
Property Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and
powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Property Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, and the
Property Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee
or its agents alone shall be sufficient and effective
to perform any such action; and no third party shall be
required to inquire as to the authority of the Property
Trustee to so act, or as to its compliance with any of
the terms and provisions of this Declaration, both of
which shall be conclusively evidenced by the Property
Trustee s or its agent s taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or
right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders
of the Securities, which instructions may only be given
by the Holders of the same proportion and liquidation
20<PAGE>
amount of the Securities as would be entitled to direct
the Property Trustee under the terms of the Securities
in respect of such remedies, right or action, (ii) may
refrain from enforcing such remedy or right or taking
such other action until such instructions are received,
and (iii) shall be protected in acting in accordance
with such instructions; and
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under
any obligation to take any action that is discretionary
under the provisions of this Declaration.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent, in accordance
with applicable law, to perform any such act or acts, or to
exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property
Trustee shall be construed to be a duty.
3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.2, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee
described in this Declaration. Except as set forth in Section 5.2,
the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Business
Trust Act.
3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, any Regular
Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to execute
pursuant to Section 3.6.
3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the
Trust or any part thereof. The Trustees make no representations as to
the validity or sufficiency of this Declaration or the Securities.
3.14 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions of Article
Eight hereof, shall dissolve 55 years from the date of the Prospectus.
21<PAGE>
3.15 Mergers.
(a) The Trust may not consolidate, amalgamate or merge with or
into, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to, any
corporation or other body, except as described in Section
3.15(b) and (c).
(b) The Trust may, with the consent of a majority of the Regular
Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Property Trustee,
consolidate, amalgamate or merge with or into, or be
replaced by, a trust organized as such under the laws of any
State; provided, that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Preferred Securities other
securities having substantially the same terms as
the Preferred Securities (the "Successor
Securities") so long as the Successor Securities
rank the same as the Preferred Securities rank
with respect to Distributions and payments upon
liquidation, redemption and maturity;
(ii) the Debenture Issuer expressly acknowledges a trustee
of the Successor Entity which possesses the same powers
and duties as the Property Trustee as the Holder of the
Debentures;
(iii) the Preferred Securities or any Successor Securities
are listed, or any Successor Securities will be listed
upon notification of issuance, on any national
securities exchange or other organization on which the
Preferred Securities are then listed;
(iv) such merger, consolidation, amalgamation or replacement
does not cause the Preferred Securities or any
Successor Securities to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities
or any Successor Securities in any material respect
under the documents governing the Preferred Securities
or the Successor Securities (other than with respect to
any dilution of such Holders interests in the new
entity);
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
22<PAGE>
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a
nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights,
preferences and privileges of the Holders of the
Preferred Securities or any Successor Securities
in any material respect under the documents
governing the Preferred Securities or the
Successor Securities (other than with respect to
any dilution of the Holders interest in the new
entity); and
(B) following such merger, consolidation, amalgamation
or replacement, neither the Trust nor the
Successor Entity will be required to register as
an Investment Company; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at
least to the extent provided by the Preferred
Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of the Holders of 100% in liquidation
amount of the Securities, consolidate, amalgamate or merge
with or into, or be replaced by, any other entity or permit
any other entity to consolidate, amalgamate or merge with or
into, or replace, it if such consolidation, amalgamation,
merger or replacement would cause the Trust or Successor
Entity to be classified as other than a grantor trust for
United States federal income tax purposes and each Holder of
the Securities not to be treated as owning an undivided
beneficial interest in the Debentures.
IV
SPONSOR
4.1 Sponsor s Purchase of Common Securities.
On November 18, 1998, the Sponsor will purchase all the Common
Securities issued by the Trust, in an amount equal to 3% of the
capital of the Trust, at the same time as the Preferred Securities are
sold.
4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the right and responsibility to engage in the
following activities and to execute on behalf of the Trust the
documents referred to in subsections (a) through (e) of this Section
4.2:
23<PAGE>
(a) to prepare, execute and file with the Commission a
registration statement on Form S-3 in relation to the
Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Preferred
Securities and to prepare, execute and file such documents
as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(c) to prepare, execute and file an application to the New York
Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance
of any Preferred Securities;
(d) to prepare, execute and file with the Commission a
registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b)
of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of and execute the Underwriting
Agreement providing for the sale of the Preferred
Securities.
4.3 Expenses.
(a) The Sponsor shall be responsible for and pay for all (and
the Trust shall not be obligated to pay, directly or
indirectly, for any) debts and obligations (other than with
respect to the Securities) and all costs and expenses of the
Trust, including, without limitation, the costs and expenses
relating to the organization of the Trust, the issuance of
the Preferred Securities, the fees and expenses of the
Property Trustee and the Delaware Trustee, the costs and
expenses related to the operation of the Trust, including,
without limitation, the costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses of
printing and engraving, Paying Agents(s), registrar(s),
transfer agent(s), duplicating, travel, telephone and costs
and expenses incurred in connection with the disposition of
Trust assets.
(b) The Sponsor will pay any and all taxes and all liabilities,
costs and expenses with respect to such taxes of the Trust.
24<PAGE>
V
TRUSTEES
5.1 Number of Trustees.
The number of Trustees shall initially be three (3), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the
number of Trustees;
(b) after the issuance of any Securities the number of Trustees
may be increased or decreased by vote of the Holders of a
Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities, provided that at all times the number of
Trustees shall be at least three (3) (the majority of which
shall be Regular Trustees); and
(c) if there are only three Trustees, the Trustee that acts as
Property Trustee shall also act as Delaware Trustee pursuant
to Section 5.2.
5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware;
or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise
meets the requirements of applicable law;
provided that if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Property Trustee shall also be the
Delaware Trustee and Section 3.11 shall have no application.
5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to
act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars
25<PAGE>
($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law
or to the requirements of the supervising or examining
authority referred to above, then for the purposes of
this Section 5.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published; and
(iii) if the Trust is excluded from the definition of an
Investment Company solely by means of Rule 3a-7 and, to
the extent Rule 3a-7 requires a trustee having certain
qualifications to hold title to the "eligible assets"
of the Trust, the Property Trustee shall possess those
qualifications.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property
Trustee shall immediately resign in the manner and with the
effect set out in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act, the Property Trustee and the
Holders of the Common Securities (as if it were the obligor
referred to in Section 310(b) of the Trust Indenture Act)
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of
clause (i) of the first provision contained in Section
310(b) of the Trust Indenture Act.
5.4 Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall
act through one or more Authorized Officers.
5.5 Initial Trustees.
The initial Regular Trustees shall be:
Merle D. Lewis
125 S. Dakota Avenue
Suite 1100
Sioux Falls, South Dakota 57104
Richard R. Hylland
125 S. Dakota Avenue
26<PAGE>
Suite 1100
Sioux Falls, South Dakota 57104
The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 N. Market Street
Wilmington, Delaware 19890-0001
The initial Delaware Trustee shall also act as Property Trustee.
5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities by vote of the
Holders of a Majority in liquidation amount of the
Common Securities voting as a class at a meeting of the
Holders of the Common Securities; provided that if an
Event of Default has occurred and is continuing, the
Property Trustee and the Delaware Trustee may only be
appointed or removed at such time by a vote of the
Holders of a Majority in liquidation amount of the
Preferred Securities voting as a class at a meeting of
the Holders of the Preferred Securities.
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.6(a) until:
(i) a successor Property Trustee has been appointed and has
accepted such appointment by written instrument
executed by such successor Property Trustee and
delivered to the Regular Trustees and the Sponsor; and
(ii) unless such successor Property Trustee shall also serve
as Delaware Trustee, a successor Trustee possessing the
qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 has been appointed and has
accepted such appointment by written instrument
executed by such successor Delaware Trustee and
delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death,
removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an
instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take
27<PAGE>
effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a successor Property Trustee has been
appointed and has accepted such appointment by
instrument executed by such successor Property
Trustee and delivered to the Trust, the Sponsor
and the resigning Property Trustee; or
(B) if the Trust is not deemed an Investment Company
solely by reason of Rule 3a-7, until the assets of
the Trust have been completely liquidated and the
proceeds thereof distributed to the Holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to appoint promptly a successor Delaware Trustee or
successor Property Trustee, as the case may be, if the
Delaware Trustee or the Property Trustee delivers an
instrument of resignation in accordance with this Section
5.6.
(e) If no successor Property Trustee or successor Delaware
Trustee shall have been appointed and accepted appointment
as provided in this Section 5.6 within 60 days after
delivery to the Sponsor and the Trust of an instrument of
resignation, the resigning Property Trustee or Delaware
Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a successor Property Trustee
or successor Delaware Trustee. Such court may thereupon,
after causing to be given such notice, if any, as it may
deem proper and prescribe, appoint a successor Property
Trustee or successor Delaware Trustee, as the case may be.
5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur.
A resolution certifying the existence of such vacancy by a majority of
the Regular Trustees shall be conclusive evidence of the existence of
such vacancy. The vacancy shall be filled with a Trustee appointed in
accordance with Section 5.6.
28<PAGE>
5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, terminate or annul the Trust.
Whenever a vacancy in the number of Regular Trustees shall occur,
until such vacancy is filled by the appointment of a Regular Trustee
in accordance with Section 5.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the
Regular Trustees by this Declaration.
5.9 Meetings.
Meetings of the Regular Trustees shall be held from time to time upon
the call of any Regular Trustee. Regular meetings of the Regular
Trustees may be held at a time and place fixed by resolution of the
Regular Trustees. Notice of any in-person meetings of the Regular
Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not
less than 48 hours before such meeting. Notice of any telephonic
meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24
hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence
(whether in person or by telephone) of a Regular Trustee at a meeting
shall constitute a waiver of notice of such meeting except where a
Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a
meeting by vote of a majority of the Regular Trustees present (whether
in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Regular Trustees.
5.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 3.6,
including any governmental filing; and
(b) the Regular Trustees shall have power to delegate from time
to time to such of their number or to officers of the Trust
the doing of such things and the execution of such
instruments either in the name of the Trust or the names of
the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions
of the Trust, as set forth herein.
29<PAGE>
VI
DISTRIBUTIONS
6.1 Distributions.
Holders shall receive Distributions in accordance with the applicable
terms of the Securities. Distributions shall be made on the Preferred
Securities and the Common Securities in accordance with the
preferences set forth in their respective terms. If and to the extent
that the Debenture Issuer makes a payment of interest (including
Compounded Interest and Additional Sums (each as defined in the
Indenture)), premium of and principal on the Debentures held by the
Property Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent
funds are legally available for that purpose, to make a distribution
(a "Distribution") of the Payment Amount to Holders.
VII
ISSUANCE OF SECURITIES
7.1 General Provisions Regarding Securities.
(a) The Trust shall issue one class of preferred securities
representing undivided beneficial interests in the assets of
the Trust having such terms as are set forth in Exhibit A
and incorporated herein by reference (the "Preferred
Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust
having such terms as are set forth in Exhibit A (the "Common
Securities"). The Trust shall issue no securities or other
interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by
any Regular Trustee. Such signatures may be by manual or
facsimile signatures. Typographical and other minor errors
or defects in the reproduction of any such signature shall
not affect the validity of any Certificate. In case any
Regular Trustee who shall have signed any Certificates shall
cease to be a Regular Trustee before such Certificates shall
be delivered by the Trust, such Certificates nevertheless
may be delivered as though the Person who signed such
Certificates had not ceased to be a Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such
Persons who, at the actual date of execution of such
Security, shall be the Regular Trustees of the Trust, even
if such Person was not a Regular Trustee as of the date of
this Declaration. Certificates shall be printed,
lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees,
as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to
30<PAGE>
comply with any law or with any rule or regulation of any
stock exchange on which any Securities may be listed, or to
conform to usage.
(c) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the
capital of the Trust and shall not constitute a loan to the
Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be
validly issued, fully paid and non-assessable (except, with
respect to the Common Securities, as provided in
Section 10.1(b)).
(e) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the
terms of this Declaration, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound, by
this Declaration, the Preferred Securities Guarantee and the
Indenture.
7.2 Rights of Holders.
(a) If the Property Trustee fails to enforce its rights under
this Declaration or the Debentures, any Holder of Preferred
Securities may institute a legal proceeding against the
Debenture Issuer to enforce the Property Trustee s rights
under the Declaration or the Debentures without first
instituting any legal proceeding against the Property
Trustee or any other person or entity.
(b) For as long as any Preferred Securities remain Outstanding,
to the fullest extent permitted by law and subject to the
terms of this Declaration and the Indenture, upon an Event
of Default, any Holder of Preferred Securities shall have
the right to institute a proceeding directly against the
Debenture Issuer, pursuant to Article X of the Second
Supplemental Indenture, for enforcement of payment to such
Holder of any amount payable in respect of Debentures having
an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such
Holder.
7.3 Subordination of Common Securities.
Payment of Distributions on, and the Redemption Price of, the
Preferred Securities and Common Securities, as applicable, will be
made pro rata based on the liquidation amount of such Preferred
Securities and Common Securities. However, if on any date on which a
Distribution is to be made, or any Redemption Date, an Event of
Default has occurred and is continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other
payment on account of the redemption, liquidation or other acquisition
of such Common Securities, shall be made unless payment in full in
31<PAGE>
cash of all accumulated and unpaid Distributions on all the
outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all the
outstanding Preferred Securities then called for redemption, shall
have been made or provided for, and all funds available to the
Property Trustee shall first be applied to the payment in full in cash
of all Distributions on, or the Redemption Price of, the Preferred
Securities then due and payable.
VIII
TERMINATION OF TRUST
8.1 Termination of Trust.
(a) The Trust shall dissolve upon the first to occur of:
(i) the bankruptcy of the Holder of the Common Securities,
the Sponsor or the Debenture Issuer;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Holder of the Common
Securities, the Sponsor or the Debenture Issuer, the
revocation of the charter of the Holder of the Common
Securities, the Sponsor or the Debenture Issuer and the
expiration of 90 days after the date of revocation
without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor, the
Debenture Issuer or the Trust;
(iv) the redemption of all of the Securities in connection
with the redemption of all of the Debentures;
(v) the written direction to the Property Trustee from all
of the Holders of the Common Securities at any time to
dissolve the Trust and to distribute the Debentures to
the Holders of the Securities in exchange for the
Securities (which direction is optional and wholly
within the discretion of the Holders of the Common
Securities);
(vi) before the issuance of any Securities, the written
consent of all of the Regular Trustees and the Sponsor;
or
(vii) the expiration of the term of the Trust as provided in
Section 3.14.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Trustees shall file a
certificate of cancellation with the Secretary of State of
the State of Delaware.
32<PAGE>
(c) The provisions of Section 3.9 and Article Ten shall survive
the termination of the Trust.
IX
TRANSFER OF INTERESTS
9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this
Declaration and in the terms of the Securities. To the
fullest extent permitted by applicable law, any transfer or
purported transfer of any Security not made in accordance
with this Declaration shall be null and void.
(b) Subject to this Article Nine, Preferred Securities shall be
freely transferable.
(c) Subject to this Article Nine, the Sponsor and any Related
Party may only transfer Common Securities to the Sponsor or
a Related Party of the Sponsor; provided that, any such
transfer is subject to the condition precedent that the
transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters
that such transfer would not cause more than an
insubstantial risk that:
(i) the Trust would be classified for United States federal
income tax purposes as an association taxable as a
corporation or a partnership and each Holder of
Securities would not be treated as owning an undivided
beneficial interest in the Debentures; and
(ii) the Trust or the transferee would be an Investment
Company or would be controlled by an Investment
Company.
9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected
without charge but only upon payment (with such indemnity as the
Regular Trustees may require) in respect of any tax or other
government charges which may be imposed in relation to it. Upon
surrender for registration of transfer of any Certificate, the Regular
Trustees shall cause one or more new Certificates to be issued in the
name of the designated transferee or transferees. Every Certificate
surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular
Trustees duly executed by the Holder or such Holder s attorney duly
authorized in writing. Each Certificate surrendered for registration
of transfer shall be canceled by the Regular Trustees. A transferee
of a Certificate shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee
33<PAGE>
of a Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration and the
documents incorporated by reference herein.
9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole holder
of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such Certificate or in
the Securities represented by such Certificate on the part of any
Person, whether or not the Trust shall have actual or other notice
thereof.
9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Preferred Securities,
the Preferred Securities Certificates, on original issuance, will be
issued in the form of one or more, fully registered, global Preferred
Security Certificates (each a "Global Certificate"), to be delivered
to DTC, the initial Clearing Agency, by, or on behalf of, the Trust.
Such Global Certificates shall initially be registered on the books
and records of the Trust in the name of Cede & Co., the nominee of
DTC, and no Preferred Security Beneficial Owner will receive a
definitive Preferred Security Certificate representing such Preferred
Security Beneficial Owner s interests in such Global Certificates,
except as provided in Section 9.7. Unless and until definitive, fully
registered Preferred Security Certificates (the "Definitive Preferred
Security Certificates") have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration
(including the payment of Distributions on the Global
Certificates and receiving approvals, votes or consents
hereunder) as the Holder of the Preferred Securities and the
sole holder of the Global Certificates and shall have no
obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the
provisions of this Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between
such Preferred Security Beneficial Owners and the Clearing
Agency and/or the Clearing Agency Participants to receive
and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants. DTC will
34<PAGE>
make book entry transfers among the Clearing Agency
Participants.
9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, unless and until
Definitive Preferred Security Certificates shall have been issued to
the Preferred Security Beneficial Owners pursuant to Section 9.7, the
Regular Trustees shall give all such notices and communications
specified herein to be given to the Preferred Security Holders to the
Clearing Agency, and shall have no notice obligations to the Preferred
Security Beneficial Owners.
9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the
Regular Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to such Preferred Securities.
9.7 Definitive Preferred Security Certificates.
(a) If:
(i) a Clearing Agency notifies the Sponsor that it is
unwilling or unable to continue its services as
securities depositary with respect to the Preferred
Securities and a successor Clearing Agency is not
appointed pursuant to Section 9.6 within 90 days after
such discontinuance;
(ii) a Clearing Agency ceases to be registered under the
Exchange Act at a time the Clearing Agency is required
to be so registered to act as such depository and a
successor Clearing Agency is not appointed pursuant to
Section 9.6 within 90 days after notice of such
cessation;
(iii) the Regular Trustees elect, with the consent of the
Sponsor, to terminate the book entry system through the
Clearing Agency with respect to the Preferred
Securities; or
(iv) an Event of Default shall have occurred and be
continuing;
then:
(v) Definitive Preferred Security Certificates shall be
prepared by the Regular Trustees on behalf of the Trust
with respect to such Preferred Securities; and
(vi) upon surrender of the Global Certificates by the
Clearing Agency, accompanied by registration
35<PAGE>
instructions, the Regular Trustees shall cause
Definitive Preferred Security Certificates to be
delivered to Preferred Security Beneficial Owners in
accordance with the instructions of the Clearing
Agency. Neither the Trustees nor the Trust shall be
liable for any delay in delivery of such instructions
and each of them may conclusively rely on and shall be
protected in relying on, said instructions of the
Clearing Agency.
(b) The Definitive Preferred Security Certificates shall be
printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification
or designation and such legends or endorsements as the
Regular Trustees may deem appropriate, or as may be required
to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which Preferred Securities may be listed, or to
conform to usage.
9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive
evidence to their satisfaction of the destruction, loss or
theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep
each of them harmless,
then, in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, any two Regular Trustees on behalf
of the Trust shall execute and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of
any new Certificate under this Section 9.8, the Regular Trustees may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
36<PAGE>
X
LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES AND OTHERS
10.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Preferred Securities Guarantee, the Common Securities
Guarantee and the terms of the Securities, the Sponsor shall
not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the
Holders of the Securities, which shall be made solely
from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or
otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the
Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with
respect to the Securities) to the extent not satisfied out
of the Trust s assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the
same limitation of personal liability extended to
stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to
be within the scope of the authority conferred on such
Indemnified Person by this Declaration or by law, except
that an Indemnified Person shall be liable for any such
loss, damage or claim incurred by reason of such Indemnified
Person s gross negligence (or, in the case of the Property
Trustee, except as otherwise set forth in Section 3.9) or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to
the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person s
professional or expert competence and who has been selected
with reasonable care by or on behalf of the Trust, including
37<PAGE>
information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or
any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Securities
might properly be paid.
10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions
of this Declaration. The provisions of this Declaration, to
the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under
the Trust Indenture Act), are agreed by the parties hereto
to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person;
or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted
industry practices and any applicable generally accepted
accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires,
38<PAGE>
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard
imposed by this Declaration or by applicable law.
10.4 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever
incurred by such Indemnified Person by reason of the
creation, operation or termination of the Trust or any act
or omission performed or omitted by such Indemnified Person
in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the
scope of authority conferred on such Indemnified Person by
this Declaration, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of gross
negligence (or, in the case of the Property Trustee, except
as otherwise set forth in Section 3.9) or willful misconduct
with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Sponsor prior
to the final disposition of such claim, demand, action, suit
or proceeding upon receipt by the Sponsor of an undertaking
by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person
is not entitled to be indemnified as authorized in Section
10.4(a). This Section shall survive the termination of this
Declaration or the earlier removal or resignation of any of
the Trustees.
10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Debenture Issuer, the Delaware
Trustee and, subject to Section 5.3(c), the Property Trustee may
engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders
of Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive
with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Debenture Issuer, the
Delaware Trustee or the Property Trustee shall be obligated to present
39<PAGE>
any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the
Debenture Issuer, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of
the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
XI
ACCOUNTING
11.1 Fiscal Year.
The fiscal year of the Trust shall be the calendar year, or such other
year as is required by the Code.
11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of
account, records and supporting documents, which shall
reflect in reasonable detail each transaction of the Trust.
The books of account shall be maintained on the accrual
method of accounting, in accordance with generally accepted
accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for United States
federal income tax purposes. The books of account and the
records of the Trust shall be examined by and reported upon
as of the end of each fiscal year by a firm of independent
certified public accountants selected by the Regular
Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each Holder of Securities, within 90 days after
the end of each fiscal year of the Trust, annual financial
statements of the Trust, including a balance sheet of the
Trust as of the end of such fiscal year, and the related
statements of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each Holder of Securities any United States
federal income tax information statement required by the
Code, containing such information with regard to the
Securities held by such Holder as is required by the Code
and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later
date, the Regular Trustees shall endeavor to deliver all
such statements within 30 days after the end of each fiscal
year of the Trust.
40<PAGE>
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority an annual United
States federal income tax return on such form as is required
by United States federal income tax law and any other annual
income tax returns required to be filed by the Regular
Trustees on behalf of the Trust with any state or local
taxing authority.
11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall
be made directly to the Property Trustee Account, and no other funds
of the Trust shall be deposited in the Property Trustee Account. The
sole signatories for such accounts shall be designated by the Regular
Trustees; provided, however, that the Property Trustee shall designate
the sole signatories for the Property Trustee Account.
11.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder and any representations and
forms as shall reasonably be requested by the Trust to assist it in
determining the extent of, and in fulfilling, its withholding
obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is
properly established by a Holder, shall remit amounts withheld with
respect to the Holder to applicable jurisdictions. To the extent that
the Trust is required to withhold and pay over any amounts to any
authority with respect to distributions or allocations to any Holder,
the amount withheld shall be deemed to be a distribution in the amount
of the withholding to the Holder. In the event of any claimed over
withholding, to the fullest extent permitted by law, Holders shall be
limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
XII
AMENDMENTS AND MEETINGS
12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be
amended by, and only by, a written instrument approved and
executed by the Regular Trustees (or, if there are more than
two Regular Trustees, by a majority of the Regular
Trustees); provided, however, that:
41<PAGE>
(i) no amendment shall be made, and any such purported
amendment shall be void and ineffective, to the extent
the result thereof would be to
(A) cause the Trust to be classified as other than a
grantor trust for purposes of United States
federal income taxation as confirmed by an opinion
of counsel;
(B) affect the powers, rights, duties, obligations or
immunities of the Property Trustee or the Delaware
Trustee (unless such amendment is consented to in
writing by the Property Trustee or the Delaware
Trustee, as the case may be); or
(C) cause the Trust to be deemed an Investment Company
that is required to be registered under the
Investment Company Act;
(ii) at such time after the Trust has issued any Securities
that remain outstanding, any amendment that would (A)
materially adversely affect the rights, privileges or
preferences of any Holder of Securities or (B) provide
for the dissolution or winding-up of the Trust other
than pursuant to this Declaration may be effected only
with such additional requirements as may be set forth
in the terms of such Securities;
(iii) Section 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders
of the Securities;
(iv) Article Four shall not be amended without the consent
of the Holders of a Majority in liquidation amount of
the Common Securities; and
(v) the rights of the holders of the Common Securities
under Article Five to increase or decrease the number
of, and appoint and remove Trustees shall not be
amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities
(except to the extent such amendment relates to the
rights of the Holders of the Preferred Securities with
respect to the Property Trustee, in which case such
amendment may only be made in accordance with the terms
of the Preferred Securities).
(b) Subject to Section 12.1(a)(ii), this Declaration may be
amended without the consent of the Holders of the Securities
to:
(i) cure any ambiguity;
42<PAGE>
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other
provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of
the Sponsor; and
(iv) conform to any change in Rule 3a-7 or written change in
interpretation or application of Rule 3a-7 by any
legislative body, court, government agency or
regulatory authority, which amendment does not have a
material adverse effect on the right, preferences or
privileges of the Holders of the Securities.
12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided
in the terms of the Securities) to consider and act on any
matter on which the Holders of such class of Securities are
entitled to act under the terms of this Declaration, the
terms of the Securities or the rules of any stock exchange
on which any Securities are listed or admitted for trading.
The Regular Trustees shall call a meeting of the Holders of
any class of Securities, if directed to do so by the Holders
of at least 10% in liquidation amount of such class of
Securities. Such direction shall be given by delivering to
the Regular Trustees one or more written notices stating
that the signing Holders of Securities wish to call a
meeting and indicating the general or specific purpose for
which the meeting is to be called. Any Holders of
Securities directing the Regular Trustees to call a meeting
shall specify in writing the Certificates held by the
Holders of Securities exercising the right to call a
meeting, and only those specified shall be counted for
purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings
of Holders of Securities:
(i) Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this
Declaration or the rules of any stock exchange on which
any Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of
the Holders of Securities. Notice of any such meeting
shall be given to all the Holders of Securities having
a right to vote thereat at least 7 days and not more
than 60 days before the date of such meeting. Each
such notice will include a statement setting forth the
following information (i) the date of such meeting or
the date by which such action is to be taken; (ii) a
43<PAGE>
description of any resolution proposed for adoption at
such meeting on which such holders are entitled to vote
or of such matter upon which written consent is sought;
and (iii) instructions for the delivery of proxies or
consents. Any action that may be taken at a meeting of
the Holders of Securities may be taken without a
meeting if a consent in writing setting forth the
action so taken is signed by the Holders of Securities
owning not less than the minimum amount of Securities
in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all
Holders of Securities having a right to vote thereon
were present and voting. Prompt notice of the taking
of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify
that any written ballot submitted to the Holder for the
purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the
Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to
act for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including
waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid
after the expiration of 11 months from the date thereof
unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Holder of
Securities executing it. Except as otherwise provided
herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to
proxies, and judicial interpretations thereunder, as if
the Trust were a Delaware corporation and the Holders
of the Securities were stockholders of a Delaware
corporation.
(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate.
(iv) Unless the Business Trust Act, this Declaration, the
terms of the Securities or the listing rules of any
stock exchange on which any Securities are then listed
or trading otherwise provides, the Regular Trustees, in
their sole discretion, shall establish all other
provisions relating to meetings of the Holders of
Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be
voted on by any Holders of Securities, waiver of any
such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
44<PAGE>
(v) Any Preferred Securities that are owned by the
Debenture Issuer or any of its Affiliates shall not be
entitled to vote or consent and shall, for purposes of
any vote or consent, be treated as if such Preferred
Securities were not issued and outstanding.
XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
13.1 Representations and Warranties of Property Trustee.
The Trustee which acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this
Declaration, and each successor Property Trustee represents and
warrants to the Trust and the Sponsor at the time of the successor
Property Trustee s acceptance of its appointment as Property Trustee
that:
(a) The Property Trustee is a Delaware banking corporation with
trust powers, duly organized, validly existing and in good
standing under the laws of the State of Delaware with trust
power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, the
Declaration.
(b) The execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by all
necessary corporate action on the part of the Property
Trustee. The Declaration has been duly executed and
delivered by the Property Trustee, and it constitutes a
legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors
rights generally and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding
in equity or at law).
(c) The execution, delivery and performance of the Declaration
by the Property Trustee does not conflict with or constitute
a breach of the Articles of Organization or By-laws of the
Property Trustee.
(d) No consent, approval or authorization of, or registration
with or notice to, any state or federal banking authority is
required for the execution, delivery or performance by the
Property Trustee, of the Declaration.
45<PAGE>
XIV
MISCELLANEOUS
14.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust s mailing address set forth below (or such other
address as the Trust may give notice of to the Holders of
the Securities):
NORTHWESTERN CAPITAL FINANCING I
c/o NorthWestern Corporation
125 S. Dakota Avenue
Suite 1100
Sioux Falls, South Dakota 57104
Attention: Richard R. Hylland
(b) if given to the Property Trustee or the Delaware Trustee, at
the mailing address set forth below (or such other address
as the Property Trustee or the Delaware Trustee may give
notice of to the Holders of the Securities):
WILMINGTON TRUST COMPANY
Rodney Square North
1100 N. Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such
other address as the Holder of the Common Securities may
give notice to the Trust):
NORTHWESTERN CORPORATION
125 S. Dakota Avenue
Suite 1100
Sioux Falls, South Dakota 57104
Attention: Daniel K. Newell
(d) if given to any other Holder, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address
of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability
to deliver.
46<PAGE>
14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State
of Delaware and all rights and remedies shall be governed by such laws
without regard to principles of conflict of laws.
14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust not be
characterized for United States federal income tax purposes as an
association taxable as a corporation or a partnership but rather as a
grantor trust or otherwise in a manner that each Holder of Securities
be treated as owning an undivided beneficial interest in the
Debentures. The provisions of this Declaration shall be interpreted
to further this intention of the parties.
14.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this
Declaration or any provision hereof.
14.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration
by the Sponsor and the Trustees shall bind and inure to the benefit of
their respective successors and assigns, whether so expressed.
14.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to
Persons or circumstances other than those to which it is held invalid,
shall not be affected thereby.
14.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page, and this Declaration may be executed by the affixing
of the signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
47<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
NORTHWESTERN CORPORATION
as Sponsor and Debenture Issuer
By:/s/ Richard R. Hylland
------------------------------------
Name: Richard R. Hylland
Title: President and Chief Operating
Officer
/s/ Merle D. Lewis
-------------------------------------
--
Merle D. Lewis, as Regular Trustee
/s/ Richard R. Hylland
-------------------------------------
--
Richard R. Hylland, as Regular Trustee
WILMINGTON TRUST COMPANY
as Delaware Trustee and Property Trustee
By: /s/ Donald G. Mackelcan
----------------------------------
--
Name: Donald G. Mackelcan
Title: Assistant Vice President
48<PAGE>
EXHIBIT A
TERMS OF SECURITIES
TERMS OF
7.20% TRUST PREFERRED CAPITAL SECURITIES
7.20% TRUST COMMON CAPITAL SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of November 18, 1998 (as amended from time to time,
the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
and the Common Securities are set out below (each capitalized term
used but not defined herein has the meaning set forth in the
Declaration or, if not defined in such Declaration, as defined in the
Prospectus referred to below):
1. DESIGNATION AND NUMBER.
(a) "Preferred Securities." 2,200,000 Preferred Securities of
the Trust with an aggregate liquidation amount with respect
to the assets of the Trust of $55,000,000 and a liquidation
amount with respect to the assets of the Trust of $25 per
Preferred Security, are hereby designated for the purposes
of identification only as "7.20% Trust Preferred Capital
Securities" (the "Preferred Securities"). The Preferred
Security Certificates evidencing the Preferred Securities
shall be substantially in the form attached hereto as Annex
I, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or
practice or to conform to the rules of any stock exchange on
which the Preferred Securities are listed.
(b) "Common Securities." 68,042 Common Securities of the Trust
with an aggregate liquidation amount with respect to the
assets of the Trust of $1,701,050 and a liquidation amount
with respect to the assets of the Trust of $25 per Common
Security, are hereby designated for the purposes of
identification only as "7.20% Trust Common Capital
Securities" (the "Common Securities"). The Common Security
Certificates evidencing the Common Securities shall be
substantially in the form attached hereto as Annex II, with
such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
2. DISTRIBUTIONS.
(a) Distributions payable on each Security will be fixed at a
rate per annum of 7.20% (the "Coupon Rate") of the stated
liquidation amount of $25 per Security, such rate being the
rate of interest payable on the Debentures to be held by the
Property Trustee. Distributions in arrears for more than
one quarter will accumulate additional distributions thereon
compounded quarterly at the Coupon Rate (to the extent
A-1<PAGE>
permitted by applicable law). The term "Distributions" as
used herein includes such periodic cash distributions and
any such additional distributions payable unless otherwise
stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the
Property Trustee. The amount of Distributions payable for
any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full
quarterly Distribution period on the basis of the actual
number of days elapsed in such a 30-day month.
(b) Distributions on the Securities will be cumulative, will
accumulate from November 18, 1998 and will be payable
quarterly in arrears, on March 31, June 30, September 30,
and December 31 of each year, commencing on December 31,
1998, except as otherwise described below. So long as no
Event of Default has occurred and is continuing, the
Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment
period from time to time on the Debentures for a period not
exceeding 20 consecutive quarters, but not beyond the stated
maturity of the Debentures (each an "Extension Period"),
and, as a consequence of such extension, Distributions will
also be deferred. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend
such Extension Period; provided that such Extension Period
together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend
beyond the stated maturity of the Debentures. If
Distributions are deferred, the deferred Distributions,
including additional accumulated Distributions thereon at
the Coupon Rate compounded quarterly, shall be paid to
Holders as they appear on the books and records of the Trust
on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and
the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above
requirements.
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of
the Trust on the relevant record dates. While the Preferred
Securities remain in book-entry only form, the relevant
record dates shall be one Business Day prior to the relevant
payment dates which payment dates correspond to the interest
payment dates on the Debentures. Subject to any applicable
laws and regulations and the provisions of the Declaration,
each such payment in respect of the Preferred Securities
will be made as described under the heading "Description of
the Preferred Securities Book-Entry Only Issuance The
Depository Trust Company" in the Prospectus Supplement dated
November 10, 1998, to the Prospectus dated July 14, 1998
(together, the "Prospectus") included in the Registration
Statement on Form S-3 of the Sponsor, the Debenture Issuer
A-2<PAGE>
and the Trust. The relevant record dates for the Common
Securities, and, if the Preferred Securities shall not
continue to remain in book-entry only form, the relevant
record dates for the Preferred Securities, shall conform to
the rules of any securities exchange on which the securities
are listed and, if none, shall be 15 Business Days before
the relevant payment dates, which payment dates correspond
to the interest payment dates on the Debentures.
Distributions payable on any Securities that are not
punctually paid on any Distribution payment date, as a
result of the Debenture Issuer having failed to make a
payment under the Debentures, will cease to be payable to
the Person in whose name such Securities are registered on
the relevant record date, and such defaulted Distribution
will instead be payable to the Person in whose name such
Securities are registered on the special record date or
other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable
on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay),
except that if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date.
(d) In the event that there is any money or other property held
by or for the Trust that is not accounted for hereunder,
such property shall be distributed Pro Rata (as defined
herein) among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
(a) If dissolution of the Trust occurs for any reason other than
the repayment of all of the Securities in connection with
the redemption of the Debentures, the Regular Trustees
shall, after satisfaction of liabilities to creditors of the
Trust and obtaining any required Federal Energy Regulatory
Commission or state public utility commission approval,
cause Debentures held by the Property Trustee, having an
aggregate principal amount equal to the aggregate stated
liquidation amount of the Securities, with an interest rate
equal to the Coupon Rate of, and bearing accrued and unpaid
interest in an amount equal to the accumulated and unpaid
Distributions on, the Securities, to be distributed to the
Holders of the Securities in liquidation of such Holders
interests in the Trust on a Pro Rata basis, as expeditiously
as the Property Trustee determines to be possible; provided
that, if the foregoing distribution is not practical,
Holders will be entitled to receive out of the assets of the
Trust available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the aggregate
stated liquidation amount of $25 per Security plus
A-3<PAGE>
accumulated and unpaid Distributions thereon to the date of
payment (the "Liquidation Distribution").
(b) If, upon any such dissolution or winding-up of the Trust,
the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Securities
shall be paid on a Pro Rata basis.
(c) On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i)
the Securities will no longer be deemed to be outstanding,
(ii) The Depository Trust Company ("DTC") or its nominee (or
any successor Clearing Agency or its nominee), as the record
Holder of the Preferred Securities, will receive a
registered global certificate or certificates representing
the Debentures to be delivered upon such distribution with
respect to the Preferred Securities held by DTC or its
nominee, and (iii) any certificates representing the
Securities, except for certificates representing Preferred
Securities held by DTC or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent
the Debentures having an aggregate principal amount equal to
the aggregate stated liquidation amount of the Securities,
with an interest rate equal to the Coupon Rate of, and
bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on, such Securities
until such certificates are presented to the Debenture
Issuer or its agent for transfer or reissue.
(d) If the Debentures are distributed to the Holders of the
Securities, pursuant to the terms of the Indenture, the
Debenture Issuer will use its best efforts to have the
Debentures listed on the New York Stock Exchange or on such
other exchange as the Preferred Securities were listed on
immediately prior to the distribution of the Debentures.
4. REDEMPTION.
(a) Upon the repayment of the Debentures in whole or in part,
whether at maturity or upon earlier redemption, the proceeds
from such repayment or redemption shall be thereupon applied
to redeem Securities having an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so
repaid or redeemed at a redemption price of $25 per Security
plus an amount equal to accumulated and unpaid Distributions
thereon at the date of the redemption, payable in cash (the
"Redemption Price"). Holders will be given not less than 30
nor more than 60 days notice of such redemption.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities
will be redeemed Pro Rata and the Preferred Securities to be
redeemed will be as described in Paragraph 4(d)(ii) below.
A-4<PAGE>
(c) The Trust may not redeem fewer than all the outstanding
Securities unless all accumulated and unpaid Distributions
have been paid on all Securities for all quarterly
redemption.
(d) Redemption Procedures.
(i) Notice of any redemption of the Securities (a
"Redemption Notice") will be given by the Trust by mail
to each Holder of Securities to be redeemed not fewer
than 30 nor more than 60 days before the date fixed for
redemption thereof, which will be the date fixed for
redemption of the Debentures. For purposes of the
calculation of the date of redemption and the dates on
which notices are given pursuant to this paragraph
4(d)(i), a Redemption Notice shall be deemed to be
given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of
Securities. Each Redemption Notice shall be addressed
to the Holders of Securities at the address of each
such Holder appearing in the books and records of the
Trust. No defect in the Redemption Notice or in the
mailing of either thereof with respect to any Holder
shall affect the validity of the redemption proceedings
with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, then the aggregate
liquidation amount of the Securities to be redeemed
shall be redeemed Pro Rata from each Holder of
Securities, it being understood that, in respect of
Preferred Securities registered in the name of and held
of record by DTC (or any successor Clearing Agency) or
any nominee, the distribution of the proceeds of such
redemption will be made to such Clearing Agency
Participant (or Person on whose behalf such nominee
holds such Securities) in accordance with the
procedures applied by such Clearing Agency; provided
that, if, as a result of such Pro Rata redemption, such
Clearing Agency Participants will hold fractional
interests in the Preferred Securities, the Clearing
Agency will adjust the amount of the interest of each
Participant to be redeemed to avoid such fractional
interest.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption Notice, which notice may only be issued if
the Debentures are redeemed as set out in this
paragraph 4 (which notice will be irrevocable), then
(A) while the Preferred Securities are in book-entry
only form, with respect to the Preferred Securities, by
12:00 noon, New York City time, on the redemption date,
provided that the Debenture Issuer has paid to the
Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of
A-5<PAGE>
the Debentures, the Property Trustee will deposit
irrevocably with DTC (or successor Clearing Agency)
funds sufficient to pay the applicable Redemption Price
with respect to the Preferred Securities and will give
DTC irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred
Securities, and (B) with respect to Preferred
Securities issued in definitive form and Common
Securities, provided that the Debenture Issuer has paid
the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of
the Debentures, the Property Trustee will pay the
relevant Redemption Price to the Holders of such
Securities by check mailed to the address of the
relevant Holder appearing on the books and records of
the Trust on the redemption date. If a Redemption
Notice shall have been given and funds deposited as
required, then immediately prior to the close of
business on the date of such deposit, or on the
redemption date, as applicable, Distributions will
cease to accumulate on the Securities so called for
redemption and all rights of the Holders of such
Securities so called for redemption will cease, except
the right of the Holders of such Securities to receive
the Redemption Price, but without interest on such
Redemption Price. Neither the Regular Trustees nor the
Trust shall be required to register or cause to be
registered the transfer of any Securities that have
been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then
payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a
Business Day (and without any interest or other payment
in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such
payment will be made on the immediately preceding
Business Day, in each case with the same force and
effect as if made on such date fixed for redemption.
If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not
paid either by the Property Trustee or by the Sponsor
as guarantor pursuant to the relevant Preferred
Securities Guarantee or Common Securities Guarantee,
Distributions on such Securities will continue to
accumulate from the original redemption date to the
actual date of payment, in which case the actual
payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption
Price.
(iv) Redemption Notices shall be sent by the Regular
Trustees on behalf of the Trust (A) in respect of the
Preferred Securities, to DTC or its nominee (or any
successor Clearing Agency or its nominee) if the Global
Certificates have been issued or, if Definitive
A-6<PAGE>
Preferred Security Certificates have been issued, to
the Holders thereof, and (B) in respect of the Common
Securities, to the Holders thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities
laws), the Sponsor or any of its Affiliates may at any
time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or
by private agreement, and may resell such Preferred
Securities.
5. VOTING RIGHTS PREFERRED SECURITIES.
(a) Except as provided under paragraphs 5(b) and 7 and as
otherwise required by law, the Preferred Securities
Guarantee and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(b) If an Event of Default occurs and is continuing, then the
Holders of the Preferred Securities, acting as a single
class, will have the exclusive right to appoint, remove or
replace the Property Trustee during the continuance of any
Event of Default in accordance with Section 5.6(a)(ii) of
the Declaration. Not later than 30 days after such right to
appoint, remove or replace the Property Trustee arises, the
Regular Trustees will convene a meeting for the purpose of
appointing, removing or replacing the Property Trustee.
Subject to the requirements set forth in this paragraph, the
Holders of a Majority in liquidation amount of the Preferred
Securities, voting separately as a class, may direct the
time, method, and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under the
Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred
on the Property Trustee with respect to the Debentures, (ii)
waive any past event of default under the Indenture that is
waivable under Section 513 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and
payable, provided, however, that, where a consent under the
Indenture would require the consent or act of the Holders of
all of the Debentures affected thereby, the Property Trustee
may only give such consent or take such action at the
direction of the Holders of all of the Preferred Securities
outstanding. The Property Trustee shall not revoke any
action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Other than with
respect to directing the time, method and place of
conducting any remedy available to the Property Trustee as
set forth above, the Property Trustee shall not take any
action in accordance with the directions of the Holders of
A-7<PAGE>
the Preferred Securities under this paragraph unless the
Property Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal
income tax the Trust will not fail to be classified as a
grantor trust. If the Property Trustee fails to enforce its
rights under the Declaration or the Debentures, to the
fullest extent permitted by law, any Holder of Preferred
Securities may, after a period of 30 days has elapsed from
such Holder s written request to the Property Trustee to
enforce such rights, institute a legal proceeding directly
against any Person to enforce the Property Trustee s rights
under the Declaration or the Debentures, to the fullest
extent permitted by law without first instituting a legal
proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to
the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or
principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or
interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Preferred
Securities of such holder on or after the respective due
dates specified in the Debentures. In connection with such
direct action, the Debenture Issuer will be subrogated to
the rights of such Holder of Preferred Securities under the
Declaration to the extent of any payment made by the Sponsor
to such Holder of Preferred Securities in connection with
such direct action.
The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of default received from
the trustee under the Indenture with respect to the
Debentures. Such notice shall state that such event of
default also constitutes an Event of Default under the
Declaration.
Any approval or direction of Holders of Preferred Securities
may be given at a separate meeting of the Holders of the
Preferred Securities convened for such purpose, at a meeting
of all of the Holders of the Securities or pursuant to
written consent. The Regular Trustees will cause a notice
of any meeting at which the Holders of the Preferred
Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities.
Each such notice will include a statement setting forth (i)
the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of
proxies or consents.
A-8<PAGE>
No vote or consent of the Holders of the Preferred
Securities will be required for the Trust to redeem and
cancel the Preferred Securities or to distribute the
Debentures in accordance with the Declaration and the terms
of the Securities.
Notwithstanding that Holders of the Preferred Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are
owned by the Sponsor or any Affiliate of the Sponsor shall
not be entitled to vote or consent and shall, for purposes
of such vote or consent, be treated as if they were not
outstanding.
6. VOTING RIGHTS COMMON SECURITIES.
(a) Except as provided under paragraphs 6(b), 6(c) and 7, and as
otherwise required by law and the Declaration, the Holders
of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article Five of the Declaration, to vote to
appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees, subject to the exclusive
right of the Holders of the Preferred Securities to appoint,
remove or replace the Property Trustee as provided in
paragraph 5(b).
(c) Subject to Section 2.6 of the Declaration and to the rights
of the Holders of the Preferred Securities and only after
any Event of Default with respect to the Preferred
Securities has been cured, waived or otherwise eliminated,
and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting
separately as a class, may direct the time, method and place
of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under the Declaration, including
(i) directing the time, method and place of conducting any
proceeding for any remedy available to the Debenture
Trustee, or exercising any trust or power conferred on the
Debenture Trustee with respect to the Debentures, (ii)
waiving any past default and its consequences that is
waivable under Section 513 of the Indenture, or (iii)
exercising any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and
payable, provided, however, that, where a consent or action
under the Indenture would require the consent or act of the
Holders of all of the outstanding Common Securities, the
Property Trustee may only give such consent or take such
action at the direction of the Holders of all Common
Securities. Pursuant to this paragraph 6(c), the Property
Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred
A-9<PAGE>
Securities. Other than with respect to directing the time,
method and place of conducting any remedy available to the
Property Trustee or the Debenture Trustee as set forth
above, the Property Trustee shall not take any action in
accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Property Trustee
has obtained an opinion of tax counsel to the effect that
for the purposes of United States federal income tax the
Trust will not be classified as an association taxable as a
corporation or a partnership and that each Holder of the
Securities will be treated as owning an undivided beneficial
interest in the Debentures on account of such action. If
the Property Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may, after a
period of 30 days has elapsed from such Holder s written
request to the Property Trustee to enforce such rights,
institute a legal proceeding directly against any Person to
enforce the Property Trustee s rights under the Declaration,
without first instituting a legal proceeding against the
Property Trustee or any other Person.
Any approval or direction of the Holders of the Common
Securities may be given at a separate meeting of the Holders
of the Common Securities convened for such purpose, at a
meeting of all of the Holders of the Securities or pursuant
to written consent. The Regular Trustees will cause a
notice of any meeting at which the Holders of Common
Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of the Common Securities.
Each such notice will include a statement setting forth (i)
the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common
Securities or to distribute the Debentures in accordance
with the Declaration and the terms of the Securities.
7. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.1 of the
Declaration (including, without limitation, those specified
in Section 12.1(a)(i)), if any proposed amendment to the
Declaration provides for, or the Regular Trustees otherwise
propose to effect, (i) any action that would materially
adversely affect the powers, preferences or special rights
of the Securities, whether by way of amendment to the
Declaration or otherwise, or (ii) the dissolution,
winding-up of the Trust, other than as described in Section
8.1 of the Declaration, then the Holders of the Securities
A-10<PAGE>
voting together as a single class, will be entitled to vote
on such amendment or proposal (but not on any other
amendment or proposal) and such amendment or proposal shall
not be effective except with the approval of the Holders of
at least 66 2/3% in liquidation amount of the Securities,
voting together as a single class, provided that (x) if any
amendment or proposal referred to in clause (i) above would
materially adversely affect only the Preferred Securities or
the Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of 66 2/3% in liquidation amount of such class of
Securities and (y) a reduction of the aggregate liquidation
amount or Distribution rate, a change in the payment dates
or maturities of the Preferred Securities or a reduction in
the percentage in the liquidation amount of outstanding
Preferred Securities, the consent of the Holders of which is
required for an amendment to the Declaration shall not be
permitted without the consent of each Holder of Preferred
Securities.
(b) In the event the consent of the Property Trustee, as the
holder of the Debentures is required under the Indenture
with respect to any amendment, modification or termination
of the Indenture or the Debentures, the Property Trustee
shall request the direction of the Holders of the Securities
with respect to such amendment, modification or termination
and shall vote with respect to such amendment, modification
or termination as directed by a Majority in liquidation
amount of the Securities, voting together as a single class;
provided, however, that where a consent under the Indenture
would require the consent of all the Holders of the
Securities, the Property Trustee may only give such consent
at the direction of all the Holders of the Securities;
provided, further, that the Property Trustee shall not take
any action in accordance with the directions of the Holders
of the Securities under this paragraph 7(b) unless the
Property Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a
grantor trust.
8. PRO RATA.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to
each Holder of Securities according to the aggregate liquidation
amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless,
in relation to a payment, an Event of Default has occurred and is
continuing, in which case any funds available to make such payment
shall be paid first to each Holder of the Preferred Securities pro
rata according to the aggregate liquidation amount of Preferred
Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only
A-11<PAGE>
after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to
the aggregate liquidation amount of Common Securities held by the
relevant Holder relative to the aggregate liquidation amount of all
Common Securities outstanding.
9. RANKING.
The Preferred Securities rank pari passu, and payment thereon shall be
made Pro Rata, with the Common Securities except that, where an Event
of Default occurs and is continuing, the rights of Holders of the
Common Securities to payment in respect of Distributions and payments
upon liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the Preferred Securities.
10. LISTING.
The Regular Trustees shall use their best efforts to cause the
Preferred Securities to be listed on the New York Stock Exchange, Inc.
11. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE.
Each Holder of the Preferred Securities and the Common Securities, by
the acceptance thereof, agrees to the provisions of the Preferred
Securities Guarantee and the Common Securities Guarantee,
respectively, including the subordination provisions therein and to
the provisions of the Indenture.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
13. MISCELLANEOUS.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration and the Preferred
Securities Guarantee and the Indenture to any Holder without charge on
written request to the Trust at its principal place of business.
These terms and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of
Delaware, and all rights and remedies shall be governed by such laws
without regard to principles of conflict of laws.
A-12<PAGE>
ANNEX I
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT:
This Preferred Security is a Global Certificate within the meaning of
the Declaration hereinafter referred to and is registered in the name
of The Depository Trust Company (the "DTC") or a nominee of DTC. This
Preferred Security is exchangeable for Preferred Securities registered
in the name of a person other than DTC or its nominee only in the
limited circumstances described in the Declaration, and no transfer of
this Preferred Security (other than a transfer of this Preferred
Security as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC) may be registered except in limited
circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New
York) to the Trust or its agent for registration of transfer, exchange
or payment, and any Preferred Security issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
Certificate Number Number of Preferred Securities
____________ _________________
CUSIP NO. 668013206
Certificate Evidencing Preferred Securities
of
NORTHWESTERN CAPITAL FINANCING I
7.20% Trust Preferred Capital Securities.
(liquidation amount $25 per Preferred Security)
NORTHWESTERN CAPITAL FINANCING I, a business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
_______________ (the "Holder") is the registered owner of
________________ preferred securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated
the 7.20% Trust Preferred Capital Securities (liquidation amount $25
per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Preferred Securities represented hereby
are issued and shall in all respects be subject to the provisions of
the Amended and Restated Declaration of Trust of the Trust dated as of
November 18, 1998, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the
Securities as set forth in Exhibit A to the Declaration. Capitalized
A-13<PAGE>
terms used herein but not defined shall have the meanings given them
in the Declaration. The Holder is entitled to the benefits of the
Preferred Securities Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee and the Indenture to any Holder without charge
upon written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of undivided beneficial ownership in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this day
of __________, ____.
NORTHWESTERN CAPITAL FINANCING I
By:____________________________________
as Trustee
By:____________________________________
as Trustee
A-14<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
(Insert assignee s social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints
_____
agent to transfer this Preferred Security Certificate on the books of
the Trust. The agent may substitute another to act for him or her.
Date: __________________________
Signature: ______________________
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate)
A-15<PAGE>
ANNEX II
Certificate Number Number of Common
Securities
____________ ____________
Certificate Evidencing Common Securities
of
NORTHWESTERN CAPITAL FINANCING I
7.20% Trust Common Capital Securities.
(liquidation amount $25 per Common Security)
NORTHWESTERN CAPITAL FINANCING I, a business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
____________ (the "Holder") is the registered owner of ________ common
securities of the Trust representing undivided beneficial interests in
the assets of the Trust designated the 7.20% Trust Common Capital
Securities (liquidation amount $25 per Common Security) (the "Common
Securities"). The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities
represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the
Trust dated as of November 18, 1998, as the same may be amended from
time to time (the "Declaration"), including the designation of the
terms of the Securities as set forth in Exhibit A to the Declaration.
Capitalized terms used herein but not defined shall have the meanings
given them in the Declaration.
The Common Securities may not be transferred except in accordance with
the restrictions set forth in Section 9.1(c) of the Declaration.
The Holder is entitled to the benefits of the Common Securities
Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Common Securities Guarantee and the
Indenture to any Holder without charge upon written request to the
Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States federal
income tax purposes the Debentures as indebtedness and the Common
Securities as evidence of undivided beneficial ownership in the
Debentures.
A-16<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ____
day of ___________, ____.
NORTHWESTERN CAPITAL FINANCING __
By:
_____________________________________
as Trustee
By: ____________________________________
as Trustee
A-17<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
(Insert assignee s social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints
____
agent to transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ________________________
Signature: ___________________
(Sign exactly as your name appears on the other side of this Common
Security Certificate)
A-18<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
[From Second Supplemental Indenture]
B-1<PAGE>
EXHIBIT C
UNDERWRITING AGREEMENT
U/USER/DOCPROC/EDGER/MILLER/ex4(e)
C-1<PAGE>
EXHIBIT 4(f)
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of November 15, 1998
(this "Second Supplemental Indenture"), between NorthWestern
Corporation, a Delaware corporation (the "Company"), and The Chase
Manhattan Bank, as trustee (the "Trustee") under the Indenture dated
as of August 1, 1995 between the Company and the Trustee (such
Indenture, as supplemented by the First Supplemental Indenture thereto
dated as of August 1, 1995 and as further supplemented by this Second
Supplemental Indenture, the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of the Company's
subordinated debt securities, to be issued from time to time in one or
more series as might be determined by the Company under the Indenture,
in an unlimited aggregate principal amount which may be authenticated
and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its
Securities to be known as its 7.20% Junior Subordinated Deferrable
Interest Debentures due 2038 (the "Subordinated Debentures"), the form
and substance of such Subordinated Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the
Indenture and this Second Supplemental Indenture;
WHEREAS, NorthWestern Capital Financing I, a Delaware
statutory business trust (the "Trust"), has offered to the public
$55,000,000 aggregate liquidation amount of its 7.20% Trust Preferred
Capital Securities (the "Preferred Securities") and has offered to the
Company $1,701,050 in aggregate liquidation amount of the Trust's
common securities, each representing undivided beneficial interests in
the assets of the Trust, and proposes to invest the proceeds from such
offerings in $56,701,050 aggregate principal amount of the
Subordinated Debentures; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this Second Supplemental Indenture, and all requirements
necessary to make this Second Supplemental Indenture a valid
instrument in accordance with its terms (and to make the Subordinated
Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company) have
been performed, and the execution and delivery of this Second
Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and
acceptance of the Subordinated Debentures by the Holders thereof, and
for the purpose of setting forth, as provided in the Indenture, the
<PAGE>
form and substance of the Subordinated Debentures and the terms,
provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term not defined herein that is defined in the Indenture
has the same meaning when used in this Second Supplemental
Indenture;
(b) a term defined anywhere in this Second Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the Trust shall be deemed to be an "NWPS Trust" for purposes
of the Indenture;
(g) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Clearing Agency; (iii)
Delaware Trustee; (iv) Distribution; (v) Property Trustee;
(vi) Preferred Securities Guarantee; (vii) Preferred
Security Certificate; and (viii) Regular Trustees; and
(h) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" has the meaning specified in Section 2.5(c).
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated as of November 18, 1998, as amended or restated from
time to time.
"Direct Action" has the meaning specified in Section 10.2.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Tax Event or an Investment Company Event or at the
option of the Company, the Trust is to be dissolved in accordance with
the Declaration, and the Subordinated Debentures held by the Property
2<PAGE>
Trustee are to be distributed to the holders of the Trust Securities
issued by the Trust pro rata in accordance with the Declaration.
"Investment Company Event" means the receipt by the Trust of an
opinion of counsel to the Company experienced in such matters to the
effect that, as a result of the occurrence of a change in law or
regulation or a written change (including any announced prospective
change) in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority,
there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be registered
under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or
after the date of the issuance of the Subordinated Debentures.
"Scheduled Maturity Date" has the meaning specified in Section 2.2.
"Senior Indebtedness" means (i) the principal, premium, if any, and
interest in respect of (A) indebtedness of the Company for money
borrowed and (B) indebtedness evidenced by securities, debentures,
bonds or other similar instruments issued by the Company, including,
without limitation, all obligations under its General Mortgage and
Deed of Trust dated as of August 1, 1993 between the Company and The
Chase Manhattan Bank, as successor to The Chase Manhattan Bank, N.A.,
as trustee, and the Indenture dated as of November 1, 1998 between the
Company and The Chase Manhattan Bank, as trustee; (ii) all capital
lease obligations of the Company; (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all
conditional sale obligations of the Company and all obligations of the
Company under any title retention agreement (but excluding trade
accounts payable arising in the ordinary course of business); (iv) all
obligations of the Company for the reimbursement on any letter of
credit, banker's acceptance, security purchase facility or similar
credit transaction; (v) all obligations of the type referred to in
clauses (i) through (iv) of other Persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise;
and (vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons secured by any lien on any property or
asset of the Company (whether or not such obligation is assumed by the
Company), except for (a) any such indebtedness that is by its terms
subordinated to or pari passu with the Subordinated Debentures and (b)
any indebtedness between or among the Company and its Affiliates,
including all other debt securities and guarantees in respect of those
debt securities, issued to any other trust, or a trustee of such
trust, partnership or other entity affiliated with the Company which
is a financing vehicle of the Company ("Financing Entity") in
connection with the issuance by such Financing Entity of preferred
securities or other securities that rank pari passu with, or junior
to, the Preferred Securities.
"Tax Event" means the receipt by the Trust of an opinion of counsel to
the Company experienced in such matters to the effect that, as a
3<PAGE>
result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the
date of issuance of the Subordinated Debentures, there is more than an
insubstantial risk that (i) the Trust is or will be within 90 days of
the delivery of such opinion, subject to United States federal income
tax with respect to interest received or accrued on the Subordinated
Debentures, (ii) interest payable by the Company on the Subordinated
Debentures is not, or within 90 days of the delivery of such opinion
will not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes, or (iii) the Trust is, or
will be within 90 days of the delivery of such opinion, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the
"7.20% Junior Subordinated Deferrable Interest Debentures due 2038,"
limited in aggregate principal amount to $56,701,050, which amount
shall be as set forth in any written Company Order for the
authentication and delivery of Subordinated Debentures pursuant to
Section 303 of the Indenture.
SECTION 2.2. Maturity.
(a) The Scheduled Maturity Date will be December 31, 2038.
(b) If a Tax Event described in clause (ii) of the definition of
"Tax Event" occurs, the Company will have the right, prior
to the dissolution of the Trust, to accelerate the Scheduled
Maturity Date to the minimum extent required so that
interest on the Subordinated Debentures will be deductible
for United States federal income tax purposes, but in no
event may the Scheduled Maturity Date be accelerated to be
earlier than November 18, 2013. The Scheduled Maturity Date
may be accelerated pursuant to this Section 2.2(b) only if
the Company shall have received an Opinion of Counsel
experienced in such matters to the effect that (i) following
such acceleration, interest paid on the Subordinated
Debentures will be deductible for United States federal
income tax purposes and (ii) the holders of the Preferred
Securities will not recognize income, gain or loss for
United States federal income tax purposes as a result of
4<PAGE>
such acceleration and will be subject to United States
federal income tax in the same amount, in the same manner
and at the same times as would have been the case if such
acceleration had not occurred.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Subordinated Debentures shall
be issued as Registered Securities in fully registered certificated
form without interest coupons. Principal of and interest on the
Subordinated Debentures issued in certificated form will be payable,
the transfer of such Subordinated Debentures will be registrable and
such Subordinated Debentures will be exchangeable for Subordinated
Debentures bearing identical terms and provisions at the office or
agency of the Trustee; provided, however, that payment of interest may
be made at the option of the Company by check mailed to the Holder at
such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of any
Subordinated Debentures is the Property Trustee, the payment of the
principal of and interest (including Compounded Interest and
Additional Sums, if any) on such Subordinated Debentures held by the
Property Trustee will be made at such place and to such account as may
be designated by the Property Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event:
(i) The Subordinated Debentures in certificated form may be
presented to the Trustee by the Property Trustee in
exchange for a global Subordinated Debenture in an
aggregate principal amount equal to all Outstanding
Subordinated Debentures (a "Global Debenture"), to be
registered in the name of The Depository Trust Company
(the "Depository"), or its nominee, and delivered by
the Trustee to the Depository or a custodian appointed
by the Depository for crediting to the accounts of its
participants pursuant to the instructions of the
Regular Trustees. The Company upon any such
presentation shall execute a Global Debenture in such
aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance
with the Indenture and this Second Supplemental
Indenture. Payments on the Subordinated Debentures
issued as a Global Debenture will be made to the
Depository.
(ii) If any Preferred Securities are held in non book-entry
certificated form, the Subordinated Debentures in
certificated form may be presented to the Trustee by
the Property Trustee, and any Preferred Security
Certificate which represents Preferred Securities other
5<PAGE>
than Preferred Securities held by the Depository or its
nominee ("Non Book-Entry Preferred Securities") will be
deemed to represent beneficial interests in
Subordinated Debentures presented to the Trustee by the
Property Trustee having an aggregate principal amount
equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities until such Preferred
Security Certificates are presented to the Security
Registrar for transfer or reissuance, at which time
such Preferred Security Certificates will be canceled
and a Subordinated Debenture registered in the name of
the holder of the Preferred Security Certificate or the
transferee of the holder of such Preferred Security
Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation
amount of the Preferred Security Certificate canceled
will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance
with the Indenture and this Second Supplemental
Indenture. On issue of such Subordinated Debentures,
Subordinated Debentures with an equivalent aggregate
principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been
canceled.
(b) A Global Debenture may be transferred, in whole but not in
part, only by the Depository to a nominee of the Depository,
by a nominee of the Depository to another nominee of the
Depository, or by the Depository or such nominee to a
successor Depository selected or approved by the Company or
to a nominee of such successor Depository.
(c) If at any time the Depository notifies the Company that it
is unwilling or unable to continue as Depository for the
Subordinated Debentures or if at any time the Depository
ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, at a time the Depository
is required to be so registered, and a successor Depository
is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such
condition, as the case may be, the Company will execute,
and, subject to Article Two of the Indenture, the Trustee
will authenticate and deliver, the Subordinated Debentures
in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for
such Global Debenture. In addition, if at any time the
Company determine that the Subordinated Debentures shall no
longer be represented by a Global Debenture or there shall
have occurred an Event of Default, the Company will execute,
and, subject to receipt of a certificate evidencing such
6<PAGE>
determination by the Company, the Trustee will authenticate
and deliver, the Subordinated Debentures in definitive
registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for
such Global Debenture. Upon the exchange of the Global
Debenture for such Subordinated Debentures in definitive
registered form without coupons, in authorized
denominations, the Global Debenture shall be canceled by the
Trustee. Such Subordinated Debentures in definitive
registered form issued in exchange for the Global Debenture
shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such
Securities to the Depository for delivery to the Persons in
whose names such Securities are so registered.
SECTION 2.5. Interest.
(a) Each Subordinated Debenture will bear interest at the rate
of 7.20% per annum (the "Coupon Rate") from its original
date of issuance or from the most recent Interest Payment
Date (as defined below) to which interest has been paid or
duly provided for until the principal thereof becomes due
and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at
the Coupon Rate, compounded quarterly, payable (subject to
the provisions of Article Four) quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date"), commencing on December
31, 1998, to the Person in whose name such Subordinated
Debenture or any Predecessor Security is registered, at the
close of business on the Regular Record Date for such
interest installment, which, in respect of any Subordinated
Debentures of which the Property Trustee is the Holder or a
Global Debenture, shall be the close of business on the
Business Day next preceding that Interest Payment Date;
provided, however, that interest paid at maturity shall be
paid to the Person to whom principal is paid.
Notwithstanding the foregoing sentence, if the Preferred
Securities are no longer in book-entry only form or if
pursuant to the Indenture the Subordinated Debentures are
not represented by a Global Debenture, the Regular Record
Date for such interest installment shall be 15 Business Days
before the relevant Interest Payment Date. Any interest on
any Subordinated Debenture which is payable but is not
punctually paid or duly provided for on any Interest Payment
Date shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date by virtue of having been
such Holder, and such defaulted interest and interest on
7<PAGE>
such defaulted interest (to the extent lawful) at the Coupon
Rate may be paid by the Company, at its election, (i) to the
Persons in whose names the Subordinated Debentures (or their
respective Predecessor Securities) are registered at the
close of business on a Special Record Date to be fixed by
the Company for such payment, notice of which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment, or (ii) in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which the Subordinated Debentures may
be listed, and upon such notice as may be required by such
exchange, all as more fully provided in Section 307 of the
Indenture.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day
months. Except as provided in the following sentence, the
amount of interest payable for any period shorter than a
full quarterly period for which interest in computed will be
computed on the basis of the actual number of days elapsed
in such a 30-day month. In the event that any date on which
interest is payable on the Subordinated Debentures is not a
Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with
the same force and effect as if made on such date.
(c) If, at any time while the Property Trustee is the Holder of
any Subordinated Debentures, the Trust or the Property
Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than
withholding taxes) imposed by the United States or any other
taxing authority (including, without limitation, if an event
described in clause (i) or (iii) of the definition of Tax
Event has occurred and is continuing), then, in any case,
the Company will pay as additional interest ("Additional
Sums") on the Subordinated Debentures held by the Property
Trustee such additional amounts as shall be required so that
the net amounts received and retained by the Trust and the
Property Trustee after paying such taxes, duties,
assessments or other governmental charges will be equal to
the amounts the Trust and the Property Trustee would have
received had no such taxes, duties, assessments or other
government charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
8<PAGE>
SECTION 3.1. Special Event Redemption.
If, prior to November 18, 2003, a Tax Event or an Investment Company
Event has occurred and is continuing then, notwithstanding Section
3.2, the Company shall have the right upon not less than 30 nor more
than 60 days' notice to the Holders of the Subordinated Debentures to
redeem the Subordinated Debentures in whole (but not in part) within
90 days following the occurrence of such Tax Event or Investment
Company Event at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon
(including Compounded Interest and Additional Sums, if any) to the
date of such redemption (the "Redemption Price"). The Redemption
Price shall be paid prior to 12:00 noon, New York time, on the date of
such redemption or such earlier time as the Company determines,
provided that the Company shall have deposited with the Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m. on the
date such Redemption Price is to be paid. Such redemption shall
otherwise be in accordance with the provisions of Article Eleven of
the Indenture.
SECTION 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Eleven of the Indenture, except as
otherwise may be specified in this Second Supplemental
Indenture, the Company shall have the right to redeem the
Subordinated Debentures, in whole or in part, from time to
time, on or after November 18, 2003 at the Redemption Price.
Any redemption pursuant to this paragraph will be made upon
not less than 30 nor more than 60 days' notice to the Holder
of the Subordinated Debentures. If the Subordinated
Debentures are only partially redeemed pursuant to this
Section 3.2, the particular Subordinated Debentures to be
redeemed will be selected on a pro rata basis by such method
as the Trustee shall deem fair and appropriate or, if at the
time of redemption the Subordinated Debentures are
registered as a Global Debenture, in accordance with the
Depository's customary procedures. The Redemption Price
shall be paid prior to 12:00 noon, New York time, on the
date of such redemption or at such earlier time as the
Company determines, provided that the Company shall have
deposited with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m. on the date such Redemption
Price is to be paid.
(b) The Company may not redeem fewer than all of the
Subordinated Debentures unless all accrued and unpaid
interest has been paid on all Subordinated Debentures for
all quarterly interest payment periods terminating on or
prior to the date of redemption. If a partial redemption of
the Subordinated Debentures would result in the delisting of
the Preferred Securities issued by the Trust from any
9<PAGE>
national securities exchange or other organization on which
the Preferred Securities are then listed, the Company shall
not be permitted to effect such partial redemption and may
only redeem the Subordinated Debentures in whole.
SECTION 3.3. No Sinking Fund.
The Subordinated Debentures are not entitled to the benefit of any
sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of the
Subordinated Debentures, from time to time to defer payments of
interest by extending the interest payment period of such Subordinated
Debentures for up to 20 consecutive quarters, but not beyond the
Scheduled Maturity Date of the Subordinated Debentures (the "Extended
Interest Payment Period"). To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1,
will bear interest thereon at the Coupon Rate compounded quarterly for
each quarter of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period the
Company shall pay all interest accrued and unpaid on the Subordinated
Debentures, including any Additional Sums and Compounded Interest
("Deferred Interest") that shall be payable, to the Holders of the
Subordinated Debentures in whose names the Subordinated Debentures are
registered in the Security Register on the first Regular Record Date
after the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Company may
further extend such period, provided that such period together with
all such previous and further extensions thereof shall not exceed 20
consecutive quarters or extend beyond the Scheduled Maturity Date.
Upon the termination of any Extended Interest Payment Period and upon
the payment of all Deferred Interest then due, the Company may
commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during
an Extended Interest Payment Period, except at the end thereof.
SECTION 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the
Subordinated Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give
written notice to the Regular Trustees, the Property Trustee
and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (i)
10<PAGE>
the next succeeding date on which Distributions on the Trust
Securities issued by the Trust are payable, or (ii) the date
the Trust is required to give notice of the record date or
the date such Distributions are payable to the New York
Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities
issued by the Trust, but in any event at least one Business
Day before such record date.
(b) If the Property Trustee is not the only Holder of the
Subordinated Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give the
Holders of the Subordinated Debentures and the Trustee
written notice of its selection of such Extended Interest
Payment Period 10 Business Days before the earlier of (i)
the next succeeding Interest Payment Date, or (ii) the date
the Company is required to give notice of the record or
payment date of such interest payment to the New York Stock
Exchange or other applicable self-regulatory organization
or to Holders of the Subordinated Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted
as one of the 20 quarters permitted in the maximum Extended
Interest Payment Period permitted under Section 4.1.
SECTION 4.3. RESTRICTIONS ON PAYMENTS DURING EXTENDED INTEREST
PAYMENT PERIOD
During any Extended Interest Payment Period, (a) the Company may not
declare or pay any dividends on, make any distribution with respect
to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock and (b) the Company may not make
any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that
rank pari passu with or junior to the Subordinated Debentures or make
any guarantee payments with respect to the foregoing; provided,
however, that, notwithstanding Section 1009(b) of the Indenture, the
foregoing restrictions do not apply to (i) repurchases, redemptions or
other acquisitions of shares of capital stock of the Company (A) in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, (B) in connection with a dividend
reinvestment or stockholder stock purchase plan or (C) in connection
with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to such
Extended Interest Payment Period, (ii) an exchange, redemption or
conversion of any class or series of the Company's capital stock (or
any capital stock of a subsidiary of the Company) for any class or
series of the Company's capital stock or of any class or series of the
Company s indebtedness for any class or series of the Company's
11<PAGE>
capital stock, (iii) the purchase of fractional interests in shares of
the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (iv) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other
property under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto, (v) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or
the stock issuable upon exercise of such warrants, options or other
rights is the same stock as that on which the dividend is being paid
or ranks pari passu with or junior to such stock, or (vi) payments by
the Company under the Preferred Securities Guarantee or under any
similar guarantee by the Company with respect to any securities of its
subsidiaries, provided the proceeds from the issuance of such
securities were used to purchase junior subordinated deferrable
interest debentures issued by such subsidiary.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the Subordinated
Debentures to the Property Trustee in connection with the sale of the
Trust Securities by the Trust, the Company shall:
(a) pay for all costs and expenses relating to the offering,
sale and issuance of the Subordinated Debentures, including
commissions to the underwriters payable pursuant to the
Underwriting Agreement and compensation of the Trustee under
the Indenture in accordance with the provisions of Section
607 of the Indenture; and
(b) pay for all costs and expenses of the Trust, including, but
not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and issuance
of the Trust Securities (including commissions to the
underwriters payable pursuant to the Underwriting Agreement
in connection therewith); the fees and expenses of the
Property Trustee (including, without limitation, those
incurred in connection with the enforcement by the Property
Trustee of the rights of the holders of the Preferred
Securities), the Delaware Trustee and the Regular Trustees;
the costs and expenses relating to the operation of the
Trust (including, without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and
other telecommunications expenses); and costs and expenses
12<PAGE>
incurred in connection with the acquisition, financing and
disposition of Trust assets; and
(c) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes
of the Trust.
ARTICLE VI
SUBORDINATION
SECTION 6.1. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Subordinated
Debentures issued hereunder by such Holder's acceptance thereof
likewise covenants and agrees, that all Subordinated Debentures shall
be issued subject to the provisions of this Article Six; and each
Holder of a Subordinated Debenture, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by
such provisions. The payment by the Company of the principal of and
premium, if any, and interest on all Subordinated Debentures issued
hereunder shall, to the extent and in the manner hereinafter set
forth, be subordinated and junior in right of payment to the prior
payment in full of all Senior Indebtedness, whether outstanding at the
date of this Supplemental Indenture or hereafter incurred. No
provision of this Article Six shall prevent the occurrence of any
default or Event of Default.
SECTION 6.2. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment
due on any Senior Indebtedness, or in the event that the maturity of
any Senior Indebtedness has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with
respect to the principal (including redemption and sinking fund
payments) of or premium, if any, or interest on the Subordinated
Debentures. In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraph of this Section 6.2, such
payment shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of such Senior Indebtedness or their
respective representatives, or to the trustee or trustees under any
indenture pursuant to which any Senior Indebtedness may have been
issued, as their respective interests may appear, but only to the
extent that the holders of such Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee
within 90 days of such payment of the amounts then due and owing on
such Senior Indebtedness, and only the amounts specified in such
notice to the Trustee shall be paid to the holders of such Senior
Indebtedness.
13<PAGE>
SECTION 6.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due upon all Senior Indebtedness shall first
be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company
on account of the principal (and premium, if any) or interest on the
Subordinated Debentures; and upon any such dissolution or winding-up
or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, which the Holders of the
Subordinated Debenture or the Trustee would be entitled to receive
from the Company, except for the provisions of this Article Six, shall
be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Subordinated Debentures or by
the Trustee under the Indenture if received by them or it, directly to
the holders of any Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by
such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the
extent necessary to pay such Senior Indebtedness in full, in money or
money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before
any payment or distribution is made to the Holders of Subordinated
Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing,
shall be received by the Trustee before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held
in trust for the benefit of and shall be paid over or delivered to the
holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, as
calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its
terms, after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Indebtedness.
For purposes of this Article Six, the words "cash, property or
securities" shall not be deemed to include shares of stock of the
14<PAGE>
Company as reorganized or readjusted, or securities of the Company or
any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the
extent provided in this Article Six with respect to the Subordinated
Debentures to the payment of all Senior Indebtedness that may at the
time be outstanding, provided that (i) such Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of
such Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms
and conditions provided for in Article Eight of the Indenture shall
not be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section 6.3 if such other corporation shall,
as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article Eight of the Indenture.
Nothing in Section 6.2 or in this Section 6.3 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 607 of
the Indenture.
SECTION 6.4. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Subordinated Debentures shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the
Company, as the case may be, applicable to such Senior Indebtedness
until the principal of (and premium, if any) and interest on the
Subordinated Debentures shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which
the Holders of the Subordinated Debentures or the Trustee would be
entitled except for the provisions of this Article Six, and no payment
over pursuant to the provisions of this Article Six to or for the
benefit of the holders of such Senior Indebtedness by Holders of the
Subordinated Debentures or the Trustee shall, as between the Company,
its creditors other than holders of Senior Indebtedness and the
Holders of the Subordinated Debentures, be deemed to be a payment by
the Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article Six are and are
intended solely for the purposes of defining the relative rights of
the Holders of the Subordinated Debentures, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article Six or elsewhere in the Indenture or
in the Subordinated Debentures is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness and the Holders of the Subordinated Debentures, the
obligation of the Company, which is absolute and unconditional, to pay
15<PAGE>
to the Holders of the Subordinated Debentures the principal of (and
premium, if any) and interest on the Subordinated Debentures as and
when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the
Holders of the Subordinated Debentures and creditors of the Company,
other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any
Subordinated Debenture from exercising all remedies otherwise
permitted by applicable law upon default under the Indenture, subject
to the rights, if any, under this Article Six of the holders of such
Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any
payment or distribution of assets of the Company referred to in this
Article Six, the Trustee, subject to the provisions of Section 602 of
the Indenture, and the Holders of the Subordinated Debentures shall be
entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of the Subordinated
Debentures, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Six.
SECTION 6.5. Trustee to Effectuate Subordination.
Each Holder of Subordinated Debentures by such Holder's acceptance
thereof authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Six and appoints the Trustee
such Holder's attorney-in-fact for any and all such purposes.
SECTION 6.6. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of
the Subordinated Debentures pursuant to the provisions of this Article
Six. Notwithstanding the provisions of this Article Six or any other
provision of the Indenture and this Second Supplemental Indenture, the
Trustee shall not be charged with knowledge of the existence of any
facts that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Subordinated Debentures pursuant to the
provisions of this Article Six, unless and until a Responsible Officer
of the Trustee shall have received written notice thereof from the
Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Section 602 of the
Indenture, shall be entitled in all respects to assume that no such
16<PAGE>
facts exist; provided, however, that, if the Trustee shall not have
received the notice provided for in this Section 6.6 at least two
Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or
interest on any Subordinated Debenture), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected by
any notice to the contrary that may be received by it within two
Business Days prior to such date.
The Trustee, subject to the provisions of Section 602 of the
Indenture, shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a
holder of such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Six, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Six, and, if such evidence is
not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
SECTION 6.7. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Six in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Six, and no
implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of such Senior Indebtedness, and the Trustee shall not be
liable to any holder of such Senior Indebtedness if it shall
mistakenly pay over or deliver to the Holders of the Subordinated
Debentures, the Company or any other Person money or assets to which
any holder of such Senior Indebtedness shall be entitled by virtue of
this Article Six or otherwise.
17<PAGE>
SECTION 6.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be
charged with. Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the Company
may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Subordinated Debentures,
without incurring responsibility to the Holders of the Subordinated
Debentures and without impairing or releasing the subordination
provided in this Article Six or the obligations hereunder of the
Holders of the Subordinated Debentures to the holders of such Senior
Indebtedness, do any one or more the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Senior Indebtedness, or otherwise amend or
supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any other
Person.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Covenant to List on Exchange.
If Subordinated Debentures are to be distributed to the holders of the
Preferred Securities upon a Dissolution Event, the Company will use
its best efforts to list such Subordinated Debentures on the New York
Stock Exchange or on such other exchange as the Preferred Securities
are then listed.
ARTICLE VIII
FORM OF SUBORDINATED DEBENTURE
SECTION 8.1. Form of Subordinated Debenture.
The Subordinated Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the
following forms:
(FORM OF FACE OF DEBENTURE)
18<PAGE>
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT: This
Subordinated Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Subordinated Debenture
is exchangeable for Subordinated Debentures registered in the name of
a person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this
Subordinated Debenture (other than a transfer of this Subordinated
Debenture as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee
of the Depository) may be registered except in limited circumstances.
Unless this Subordinated Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New
York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any Subordinated Debenture issued
is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
No._______________
$_________________
CUSIP No. 668074 AA 5
7.20% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE DUE 2038
NorthWestern Corporation, a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay
to ______________________, or registered assigns, the principal sum of
_______ Dollars on December 31, 2038, and to pay interest on said
principal sum from November 18, 1998, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June 30,
September 30 and December 31 of each year commencing December 31,
1998, at the rate of 7.20% per annum until the principal hereof shall
have become due and payable, and on any overdue principal and premium,
if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on
this Subordinated Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in
19<PAGE>
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force
and effect as if made on such date. The interest installment so
payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Subordinated Debenture (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close
of business on the Regular Record Date for such interest installment,
which, if this Subordinated Debenture is a Global Debenture, shall be
the close of business on the Business Day next preceding such Interest
Payment Date or, if this Subordinated Debenture is not a Global
Debenture, shall be 15 Business Days before the relevant Interest
Payment Date; provided that interest paid at maturity shall be paid to
the Person to whom principal is paid. Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such Regular Record Date and may
be paid to the Person in whose name this Subordinated Debenture (or
one or more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to
the registered Holders of the Subordinated Debentures not less than 10
days prior to such special record date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Subordinated Debentures may be
listed, and upon such notice as may be required by such exchange, all
as more fully provided in the Indenture. The principal of (and
premium, if any) and interest on this Subordinated Debenture shall be
payable at the office or agency of the Trustee maintained for that
purpose in any coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made
at the option of the Company by check mailed to the registered Holder
at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this
Subordinated Debenture is the Property Trustee, the payment of the
principal of (and premium, if any) and interest on this Subordinated
Debenture will be made at such place and to such account as may be
designated by the Property Trustee.
The indebtedness evidenced by this Subordinated Debenture is, to the
extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness, and
this Subordinated Debenture is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Subordinated
Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior
20<PAGE>
Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
Unless the Certificate of Authentication hereon has been executed by
the Trustee referred to on the reverse side hereof, this Subordinated
Debenture shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose. The provisions of this
Subordinated Debenture are continued on the reverse side hereof, and
such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
21<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument
to be executed.
Dated: _______________
NORTHWESTERN CORPORATION
By: ___________________________________
Attest:
By: ____________________________
Secretary
22<PAGE>
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
__________________________________
The Chase Manhattan Bank, as
Trustee
By: ______________________________
Authorized Officer
23<PAGE>
(FORM OF REVERSE OF DEBENTURE)
This Subordinated Debenture is one of a duly authorized series of
Securities of the Company (herein sometimes referred to as the
"Subordinated Debentures"), all issued under and pursuant to an
Indenture dated as of August 1, 1995, duly executed and delivered
between the Company and The Chase Manhattan Bank (as successor to The
Chase Manhattan Bank, N.A.), as Trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture thereto dated as of
August 1, 1995 and as further supplemented by the Second Supplemental
Indenture thereto dated as of November 15, 1998, between the Company
and the Trustee (such Indenture as so supplemented, the "Indenture"),
to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Subordinated Debentures. By the terms
of the Indenture, the Securities are issuable in series that may vary
as to amount, date of maturity, rate of interest and in other respects
as provided in the Indenture. This series of Securities is limited in
aggregate principal amount as specified in said Second Supplemental
Indenture.
The Company shall have the right to redeem this Subordinated Debenture
at the option of the Company, without premium or penalty, (i) in whole
or in part at any time on or after November 18, 2003 and (ii) in whole
(but not in part) at any time before November 18, 2003 in certain
circumstances upon the occurrence of a Tax Event or an Investment
Company Event, in each case at a redemption price equal to 100% of the
principal amount plus any accrued but unpaid interest hereon to the
date of such redemption (the "Redemption Price"). Any redemption
pursuant to this paragraph will be made upon not less than 30 nor more
than 60 days' notice, at the Redemption Price. The Company may not
redeem fewer than all of the Subordinated Debentures unless all
accrued and unpaid interest has been paid on all Subordinated
Debentures for all quarterly interest payment periods terminating on
or prior to the date of redemption. If a partial redemption of the
Subordinated Debentures would result in the delisting of the Preferred
Securities issued by the Trust from any national securities exchange
or other organization on which the Preferred Securities are then
listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Subordinated Debentures in whole.
If the Subordinated Debentures are only partially redeemed by the
Company, the particular Subordinated Debentures to be redeemed will be
selected on a pro rata basis by such method as the Trustee shall deem
fair and appropriate or, if the Subordinated Debentures are registered
as a Global Debenture, in accordance with the Depository's customary
procedures.
In the event of redemption of this Subordinated Debenture in part
only, a new Subordinated Debenture or Debentures for the unredeemed
24<PAGE>
portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Subordinated
Debentures may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority
in aggregate principal amount of the Subordinated Debentures and all
other series of Securities affected at the time Outstanding, as
defined in the Indenture, to execute supplemental indentures for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Holders of the Subordinated Debentures; provided, however, that no
such supplemental indenture may, without the consent of the Holder of
each outstanding Subordinated Debenture, among other things, (i)
change the stated maturity of the principal of, or any installment of
interest on, any Subordinated Debenture, (ii) reduce the principal
amount of, or the rate of interest on or any Additional Sums payable
in respect of, or any premium payable upon the redemption of, the
Subordinated Debentures, or change the redemption provisions of the
Subordinated Debentures, (iii) impair the right to institute suit for
the enforcement of any such payment on or after the stated maturity of
or any redemption date for the Subordinated Debentures or (iv) reduce
the above-stated percentage of principal amount of Subordinated
Debentures, the Holders of which are required to modify or amend the
Indenture, to consent to any waiver thereunder or to approve any
supplemental indenture. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of
the Subordinated Debentures at the time outstanding affected thereby,
on behalf of all of the Holders of the Subordinated Debentures, to
waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture
with respect to the Subordinated Debentures, and its consequences,
except a default in the payment of the principal of or interest on any
of the Subordinated Debentures (unless cured as provided in the
Indenture) or in respect of a covenant or provision that cannot be
modified or amended without the consent of the Holders of each
Subordinated Debenture then outstanding. Any such consent or waiver
by the registered Holder of this Subordinated Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this
Subordinated Debenture and of any Subordinated Debenture issued in
exchange herefor or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of
such consent or waiver is made upon this Subordinated Debenture.
25<PAGE>
No reference herein to the Indenture and no provision of this
Subordinated Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay
the principal of and premium, if any, and interest on this
Subordinated Debenture at the time and place and at the rate and in
the money herein prescribed.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this
Subordinated Debenture from time to time to extend the interest
payment period hereof to up to 20 consecutive quarters, but not beyond
the Scheduled Maturity Date of this Subordinated Debenture (an
"Extended Interest Payment Period"), at the end of which period the
Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified herein to the extent that
payment of such interest is enforceable under applicable law).
Before the termination of any such Extended Interest Payment Period,
the Company may further extend such Extended Interest Payment Period,
provided that such Extended Interest Payment Period together with all
such previous and further extensions thereof shall not exceed 20
consecutive quarters or extend beyond the Scheduled Maturity Date. At
the termination of any such Extended Interest Payment Period and upon
the payment of all accrued and unpaid interest and any additional
amounts then due, the Company may commence a new Extended Interest
Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Subordinated Debenture is transferable by the
registered Holder hereof on the Security Register of the Company, upon
surrender of this Subordinated Debenture for registration of transfer
at the office or agency of the Company in the City and State of New
York accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Subordinated Debentures of authorized
denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Subordinated Debenture, the Company, the Trustee, any paying agent and
any Security Registrar may deem and treat the registered holder hereof
as the absolute owner hereof (whether or not this Subordinated
Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal
hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent
26<PAGE>
nor any Security Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Subordinated Debenture, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of
the Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of any
predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
The Subordinated Debentures of this series are issuable only in
registered form without coupons in denominations of $25 and any
integral multiple thereof. As provided in the Indenture and subject
to certain limitations herein and therein set forth, Subordinated
Debentures of this series so issued are exchangeable for a like
aggregate principal amount of Subordinated Debentures of this series
of a different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Subordinated Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE IX
ORIGINAL ISSUE OF SUBORDINATED DEBENTURES
SECTION 9.1. Original Issue of Subordinated Debentures.
Subordinated Debentures in the aggregate principal amount of
$56,701,050 may, upon execution of this Second Supplemental Indenture,
be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
deliver said Subordinated Debentures to or upon receipt of a Company
Order, without any further action by the Company.
ARTICLE X
RIGHTS OF HOLDERS OF PREFERRED SECURITIES
SECTION 10.1. Preferred Security Holders' Rights
Notwithstanding Section 507 of the Indenture, if the Property Trustee
fails to enforce its rights under the Declaration or the Subordinated
Debentures, any holder of Preferred Securities may institute a legal
proceeding against the Company to enforce the Property Trustee's
rights under the Declaration or the Subordinated Debentures without
first instituting any legal proceeding against the Property Trustee or
any other Person or entity.
27<PAGE>
SECTION 10.2. Direct Action.
Notwithstanding any other provision of the Indenture, for as long as
any Preferred Securities remain outstanding, to the fullest extent
permitted by law, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the
Company to pay interest or principal on the Subordinated Debentures on
the date such interest or principal is due and payable, any holder of
Preferred Securities shall have the right to institute a proceeding
directly against the Company for enforcement of payment to such holder
of the principal of or interest (including any Additional Sums) on
Subordinated Debentures having an aggregate principal amount equal to
the aggregate liquidation amount of such holder's Preferred Securities
(a "Direct Action"). The Company may not amend this Subordinated
Indenture to remove the right to bring a Direct Action without the
prior written consent of the holders of all the Preferred Securities
then outstanding.
SECTION 10.3. Payments Pursuant to Direct Actions.
The Company shall have the right to set-off against its obligations to
the Trust, as Holder of the Subordinated Debentures, any payment made
to a holder of Preferred Securities in connection with a Direct
Action.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Ratification of Indenture.
The Indenture, as heretofore supplemented and as further supplemented
by this Second Supplemental Indenture, is in all respects ratified and
confirmed, and this Second Supplemental Indenture shall be deemed part
of the Indenture in the manner and to the extent herein and therein
provided.
SECTION 11.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or
sufficiency of this Second Supplemental Indenture.
SECTION 11.3. Governing Law.
This Second Supplemental Indenture and each Subordinated Debenture
shall be deemed to be a contract made under the internal laws of the
State of New York and for all purposes shall be construed in
accordance with the laws of said State.
28<PAGE>
SECTION 11.4. Separability.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Subordinated Debentures shall for any
reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any
other provisions of this Second Supplemental Indenture or of the
Subordinated Debentures, but this Second Supplemental Indenture and
the Subordinated Debentures shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or
therein.
SECTION 11.5. Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
29<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Second Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, on the
date or dates indicated in the acknowledgments and as of the day and
year first above written.
NORTHWESTERN CORPORATION
By: /s/ Richard R. Hylland
---------------------------------
-
Name: Richard R. Hylland
Title: President and Chief
Operation Officer
Attest:
Susan Anderson-Bachman
------------------------------------
Name: Susan Anderson-Bachman
Title: Assistant Corporate Secretary
THE CHASE MANHATTAN BANK
By: /s/ R.J. Halleran
---------------------------------
Name: R.J. Halleran
Title: Second Vice President
Attest:
Sheik Wiltshire
------------------------------------
Name: Sheik Wiltshire
Title: Second Vice President
30<PAGE>
STATE OF SOUTH DAKOTA )
) SS
COUNTY OF MINNEHAHA )
On the day of November 18, 1998 before me personally
Richard R. Hylland and came to be known, who, being by me duly sworn,
did depose and say that he is the President and Chief Operating Officer
of NorthWestern Corporation, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal
of said corporation; that the seal affixed to the said instrument is
such corporation seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name thereto by
like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my seal of office this 18 day of November 1998.
/s/ Heidi M. Namken
-----------------------------
(Notarial Seal)
STATE OF NEW YORK )
) SS
COUNTY OF KINGS )
On the day of November 18, 1998, before me personally R. J.
Halleran came to be known, who, being by me duly sworn, did depose and
say that he is the a Second Vice President of The Chase Manhattan
Bank, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such
corporation seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by
like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my seal of office this 18th day of November, 1998.
/s/ Emily Fayan
-------------------------------
(Notarial Seal)
31<PAGE>
Exhibit 4(g)
PREFERRED SECURITIES GUARANTEE AGREEMENT<PAGE>
NORTHWESTERN CAPITAL FINANCING I
Cross-Reference Table
for the Guarantee Agreement
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
------------------- ---------
Section 310(a) . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . . 4.1(c), 2.8
310(c) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . 2.5, 3.2
314(f) . . . . . . . . . . . . . . . . . . . . . . . 2.1, 3.2
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
315(d) . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
Section 316(a) . . . . . . . . . . . . . . . . . . . . . 5.4(a), 2.6
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2
Section 317(a) . . . . . . . . . . . . . . . . . . . . Not Applicable
317(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
318(c) . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
----------
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Guarantee Agreement.
ii<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . 2
Common Securities . . . . . . . . . . . . . . . . 2
Common Securities Guarantee Agreement . . . . . . 2
Covered Person . . . . . . . . . . . . . . . . . . 2
Event of Default . . . . . . . . . . . . . . . . . 2
Guarantee Payments . . . . . . . . . . . . . . . . 2
Holder . . . . . . . . . . . . . . . . . . . . . . 3
Indemnified Person . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . 3
Majority in liquidation amount of the Securities . 3
Officers' Certificate . . . . . . . . . . . . . . 3
Person . . . . . . . . . . . . . . . . . . . . . . 4
Preferred Guarantee Trustee . . . . . . . . . . . 4
Responsible Officer . . . . . . . . . . . . . . . 4
Successor Preferred Guarantee Trustee . . . . . . 4
Trust Indenture Act . . . . . . . . . . . . . . . 4
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application . . . . . . . . . 4
SECTION 2.2. Lists of Holders of Securities . . . . . . . . . . 5
SECTION 2.3. Reports by the Preferred Guarantee Trustee . . . . 5
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee . . 5
SECTION 2.5. Evidence of Compliance with Conditions Precedent . 5
SECTION 2.6. Events of Default; Waiver . . . . . . . . . . . . . 6
SECTION 2.7. Event of Default; Notice . . . . . . . . . . . . . 6
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee
Trustee . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee . . . 8
SECTION 3.3. Not Responsible for Recitals or Issuance of
Guarantee . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility . . . . . 11
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustees . . . . . . . . . . . . . . . . 12
iii<PAGE>
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.2. Waiver of Notice and Demand . . . . . . . . . . . . 13
SECTION 5.3. Obligations Not Affected . . . . . . . . . . . . . 13
SECTION 5.4. Rights of Holders . . . . . . . . . . . . . . . . . 14
SECTION 5.5. Guarantee of Payment . . . . . . . . . . . . . . . 14
SECTION 5.6. Subrogation . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.7. Independent Obligations . . . . . . . . . . . . . . 15
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions . . . . . . . . . . . . 15
SECTION 6.2. Ranking . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII
TERMINATION
SECTION 7.1. Termination . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation . . . . . . . . . . . . . . . . . . . . 17
SECTION 8.2. Indemnification . . . . . . . . . . . . . . . . . . 17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Successors and Assigns . . . . . . . . . . . . . . 18
SECTION 9.2. Amendments . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.3. Notices . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.4. Benefit . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.5. Governing Law . . . . . . . . . . . . . . . . . . . 19
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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Note: This table of contents shall not, for any purpose, be deemed
to be a part of the Guarantee Agreement.
iv<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
DATED AS OF NOVEMBER 18, 1998
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of November
18, 1998, is executed and delivered by NorthWestern Corporation, a
Delaware corporation (the "Guarantor"), and Wilmington Trust Company,
a Delaware banking corporation, as trustee for the benefit of the
Holders (as defined herein) from time to time of the Preferred
Securities (as defined herein) of NorthWestern Capital Financing I, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of November 18, 1998, among the trustees of
the Issuer named therein, the Guarantor, as sponsor of the Issuer, and
the holders from time to time of undivided beneficial interests in the
assets of the Issuer, the Issuer is issuing on the date hereof
$55,000,000 aggregate stated liquidation amount of Preferred
Securities designated the 7.20% Trust Preferred Capital Securities
(the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Guarantee Agreement, to pay to
the Holders of the Preferred Securities the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble above or otherwise in this Guarantee
Agreement have the respective meanings assigned to them in
the Declaration as in effect on the date hereof;
(b) a term defined anywhere in this Guarantee Agreement has the
same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as
modified, supplemented or amended from time to time;<PAGE>
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee
Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405
promulgated under the Securities Act of 1933, as amended, or any
successor rule thereunder.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Common Securities Guarantee Agreement" means the guarantee agreement
dated as of the date hereof executed by the Guarantor for the benefit
of the holders from time to time of the Common Securities.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the
extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be
paid on the Preferred Securities to the extent the Guarantor has made
a payment of principal or interest on the Debentures (as defined in
the Declaration), (ii) the redemption price, including all accumulated
and unpaid Distributions to the date of redemption (the "Redemption
Price"), to the extent the Guarantor has made a payment of principal
or interest on the Debentures, with respect to any Preferred
Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the
Issuer (other than in connection with the distribution of Debentures
to the Holders in exchange for Preferred Securities as provided in the
Declaration or a redemption of all the Preferred Securities), the
lesser of (a) the aggregate of the liquidation amount and all
accumulated and unpaid Distributions on the Preferred Securities to
the date of payment to the extent the Issuer has funds legally
available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution"). If an Event
of Default has occurred and is continuing, the rights of holders of
the Common Securities to receive payments under the Common Securities
2<PAGE>
Guarantee Agreement are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments under this
Guarantee Agreement.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the Holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate
of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives
or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of August 1, 1995, between
the Guarantor (the "Debenture Issuer") and The Chase Manhattan Bank
(as successor to The Chase Manhattan Bank (N.A.)), as trustee, and
any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Debenture Issuer are to be issued
to the Property Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holders of
Preferred Securities, voting separately as a class, of more than 50%
of the liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement shall
include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definition relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary
to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
3<PAGE>
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company,
limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any
other entity of whatever nature.
"Preferred Guarantee Trustee" means Wilmington Trust Company, in its
capacity as trustee hereunder and not in its individual capacity,
until a Successor Preferred Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Guarantee
Agreement and thereafter means such Successor Preferred Guarantee
Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any vice-president, any assistant vice-president, the
secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer or any other
officer of the Corporate Trust Department of the Preferred Guarantee
Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties
imposed by Section 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
4<PAGE>
SECTION 2.2. Lists of Holders of Securities.
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee
may reasonably require, of the name and addresses of the
Holders of the Preferred Securities as of such date, (i)
within 14 days after January 1 and June 30 of each year, and
(ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a list of Holders as of a
date no more than 14 days before such list of Holders is
given to the Preferred Guarantee Trustee, provided that the
Guarantor shall not be obligated to provide such list of
Holders at any time the list of Holders does not differ from
the most recent list of Holders given to the Preferred
Guarantee Trustee by the Guarantor. The Preferred Guarantee
Trustee may destroy any list of Holders previously given to
it on receipt of a new list of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Section 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
SECTION 2.3. Reports by the Preferred Guarantee Trustee.
Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the
Trust Indenture Act. The Preferred Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture
Act.
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 of the
Trust Indenture Act (if any) and the compliance certificate required
by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided
for in this Guarantee Agreement that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an
Officers' Certificate.
5<PAGE>
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Guarantee Agreement, but
no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail,
first class postage prepaid, to the Holders of the Preferred
Securities, notices of all Events of Default known to the
Preferred Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided that the
Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Preferred
Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred
Guarantee Trustee shall have received written notice as
provided in Section 9.3, or a Responsible Officer charged
with the administration of the Declaration shall have
obtained written notice, of such Event of Default.
SECTION 2.8 Conflicting Interests.
The Declaration shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Preferred
Guarantee Trustee for the benefit of the Holders of the
Preferred Securities, and the Preferred Guarantee Trustee
shall not transfer this Guarantee Agreement to any Person
except a Holder of Preferred Securities exercising his or
6<PAGE>
her rights pursuant to Section 5.4(b) or to a Successor
Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as
Successor Preferred Guarantee Trustee. The right, title and
interest of the Preferred Guarantee Trustee shall
automatically vest in any Successor Preferred Guarantee
Trustee, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such
Successor Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Guarantee
Agreement for the benefit of the Holders of the Preferred
Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of
any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read
into this Guarantee Agreement against the Preferred
Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6),
the Preferred Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee Agreement,
and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed
to relieve the Preferred Guarantee Trustee from liability
for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee
Agreement, and the Preferred Guarantee Trustee
shall not be liable except for the performance of
such duties and obligations as are specifically
set forth in this Guarantee Agreement, and no
implied covenants or obligations shall be read
into this Guarantee Agreement against the
Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred
7<PAGE>
Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon any certificates
or opinions furnished to the Preferred Guarantee
Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Preferred Guarantee Trustee, the Preferred
Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform
to the requirements of this Guarantee Agreement;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a
Responsible Officer of the Preferred Guarantee Trustee,
unless it shall be proved that the Preferred Guarantee
Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Preferred Guarantee 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 Holders of not less than a
Majority in liquidation amount of the Preferred
Securities relating to the time, method and place
of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee, or
exercising any trust or power conferred upon the
Preferred Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Preferred Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial
liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the
terms of this Guarantee Agreement or adequate indemnity
for such risk or liability is not reasonably assured to
it.
SECTION 3.2. Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
8<PAGE>
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently
evidenced by a Direction or an Officers' Certificate;
(iii) whenever, in the administration of this Guarantee
Agreement, the Preferred Guarantee Trustee shall
deem it desirable that a matter be proved or
established before taking, suffering or omitting
any action hereunder, the Preferred Guarantee
Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the
Guarantor;
(iv) the Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (or any rerecording, refiling or
reregistration thereof);
(v) the Preferred Guarantee Trustee may consult with
counsel (which counsel may be counsel to the Guarantor
or any of its Affiliates and may include any of its
employees), and the written advice or opinion of such
counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or
opinion, and the Preferred Guarantee Trustee shall have
the right at any time to seek instructions concerning
the administration of this Guarantee Agreement from any
court of competent jurisdiction;
(vi) the Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Guarantee Agreement at the request
or direction of any Holder, unless such Holder shall
have provided to the Preferred Guarantee Trustee such
adequate security and indemnity as would satisfy a
reasonable person in the position of the Preferred
Guarantee Trustee against the costs, expenses
(including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying
with such request or direction, including such
reasonable advances as may be requested by the
Preferred Guarantee Trustee; provided that, nothing
9<PAGE>
contained in this Section 3.2(a)(vi) shall be taken to
relieve the Preferred Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this
Guarantee Agreement;
(vii) the Preferred Guarantee Trustee shall not be bound
to make any investigation into the facts or
matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or
other paper or document, but the Preferred
Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Preferred Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any
duties hereunder either directly or by or through
agents or attorneys, and the Preferred Guarantee
Trustee shall not be responsible for any
misconduct or negligence on the part of any agent
or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the
Preferred Securities, and the signature of the
Preferred Guarantee Trustee or its agents alone shall
be sufficient and effective to perform any such action,
and no third party shall be required to inquire as to
the authority of the Preferred Guarantee Trustee to so
act or as to its compliance with any of the terms and
provisions of this Guarantee Agreement, both of which
shall be conclusively evidenced by the Preferred
Guarantee Trustee's or its agent's taking such action;
and
(x) whenever in the administration of this Guarantee
Agreement the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder, the Preferred Guarantee Trustee (i)
may request instructions from the Holders of the
Preferred Securities, (ii) may refrain from enforcing
such remedy or right or taking such other action until
such instructions are received, and (iii) shall be
protected in acting in accordance with such
instructions.
10<PAGE>
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Preferred Guarantee
Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the
Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform
any such act or acts or to exercise any such right, power,
duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be
construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee Agreement shall be taken as
the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The
Preferred Guarantee Trustee makes no representation as to the validity
or sufficiency of this Guarantee Agreement.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such
laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision
or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation
publishes reports of condition at least annually,
pursuant to law or to the requirements of the
supervising or examining authority referred to above,
then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so
published.
11<PAGE>
(b) If at any time the Preferred Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Preferred
Guarantee Trustee shall immediately resign in the manner and
with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act, the Preferred Guarantee Trustee
and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustees.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee
may be appointed or removed without cause at any time by the
Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor
Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Preferred Guarantee Trustee
shall have been appointed or until its removal or
resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the
Preferred Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor
Preferred Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed
by such Successor Preferred Guarantee Trustee and delivered
to the Guarantor and the resigning Preferred Guarantee
Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this
Section 4.2 within 60 days after delivery to the Guarantor
of an instrument of resignation, the resigning Preferred
Guarantee Trustee may petition a court of competent
jurisdiction for appointment of a Successor Preferred
Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper,
appoint a Successor Preferred Guarantee Trustee.
12<PAGE>
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor
to the Holders or by causing the Issuer to pay such amounts to the
Holders.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding
first against the Issuer or any other Person before proceeding against
the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express
or implied agreement, covenant, term or condition relating
to the Preferred Securities to be performed or observed by
the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the Preferred Securities or the extension of time
for the performance of any other obligation under, arising
out of, or in connection with, the Preferred Securities
(other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any
interest payment period on the Debentures);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders
pursuant to the terms of the Preferred Securities, or any
action on the part of the Issuer granting indulgence or
extension of any kind;
13<PAGE>
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or
other similar proceedings affecting, the Issuer or any of
the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any
of the foregoing.
SECTION 5.4. Rights of Holders.
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee in respect of
this Guarantee Agreement or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this
Guarantee Agreement.
(b) If the Preferred Guarantee Trustee fails to enforce this
Guarantee Agreement, any Holder of Preferred Securities may,
after such Holder's written request to the Preferred
Guarantee Trustee to enforce this Guarantee Agreement,
institute a legal proceeding directly against the Guarantor
to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the
Issuer, the Preferred Guarantee Trustee or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. The Guarantor agrees that this Guarantee Agreement shall
not be discharged except by payment of the Guarantee Payments in full
and by complete performance of all obligations of the Guarantor
contained in this Guarantee Agreement.
14<PAGE>
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Guarantee
Agreement; provided, however, that the Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled to
enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at
the time of any such payment, any amounts are due and unpaid under
this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees
to hold such amount in trust for the Holders and to pay over such
amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the
Preferred Securities, and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant
to the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if there shall
have occurred an Event of Default, or an event of default under the
Declaration, or if the Guarantor has given notice of its selection of
an extended interest period with respect to the Debentures and such
period, or any extension thereof, is continuing, then, in each case,
(a) the Guarantor shall not declare or pay any dividend on, or make
any distribution with respect to, or redeem, purchase, acquire or make
a liquidation payment with respect to, any of its capital stock and
(b) the Guarantor shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
issued by the Guarantor which rank pari passu with or junior to the
Debentures; provided that the foregoing restrictions shall not apply
to (i) repurchases, redemptions or other acquisitions of shares of
capital stock of the Guarantor (A) in connection with any employment
contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or
consultants, (B) in connection with a dividend reinvestment or
stockholder stock purchase plan or (C) in connection with the issuance
of capital stock of the Guarantor (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
15<PAGE>
transaction entered into prior to such extended interest period, (ii)
an exchange, redemption or conversion of any class or series of the
Guarantor's capital stock (or any capital stock of a subsidiary of the
Guarantor) for any class or series of the Guarantor's capital stock or
of any class or series of the Guarantor's indebtedness for any class
or series of the Guarantor's capital stock, (iii) the purchase of
fractional interests in shares of the Guarantor's capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (iv) any
declaration of a dividend in connection with any stockholder's rights
plan, or the issuance of rights, stock or other property under any
stockholder's rights plan, or the redemption or repurchase of rights
pursuant thereto, (v) any dividend in the form of stock, warrants,
options or other rights where the dividend stock or the stock issuable
upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock, or (vi) payments by the Guarantor under
this Guarantee or under any similar guarantee by the Guarantor with
respect to any securities of its subsidiaries, provided the proceeds
from the issuance of such securities were used to purchase junior
subordinated deferrable interest debentures issued by such subsidiary.
In addition, so long as any Preferred Securities remain outstanding,
the Guarantor (x) will remain the sole direct or indirect owner of all
the outstanding Common Securities and shall not cause or permit the
Common Securities to be transferred except to the extent such transfer
is permitted under the Declaration, provided that any permitted
successor of the Guarantor under the Indenture may succeed to the
Guarantor's ownership of the Common Securities and (y) will use its
reasonable efforts to cause the Trust to continue to be treated as a
grantor trust for United States federal income tax purposes except in
connection with a distribution of Debentures.
SECTION 6.2. Ranking.
This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, including the
Debentures, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any
guarantee now or hereafter entered into by the Guarantor in respect of
any preferred or preference stock of any Affiliate of the Guarantor,
and (iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate upon (i) full payment of the
Redemption Price of all Securities, (ii) the distribution of the
Debentures to the Holders of all of the Securities or (iii) full
16<PAGE>
payment of the amounts payable in accordance with the Declaration upon
liquidation of the Issuer. Notwithstanding the foregoing, this
Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred
Securities or under this Guarantee Agreement.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this
Guarantee Agreement and in a manner that such Indemnified
Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this
Guarantee Agreement or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence
or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such
information, opinions, reports or statements presented to
the Guarantor by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's
professional or expert competence and who has been selected
with reasonable care by or on behalf of the Guarantor,
including information, opinions, reports or statements as to
the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of
Preferred Securities might properly be paid.
SECTION 8.2. Indemnification.
(a) To the fullest extent permitted by applicable law, the
Guarantor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred
by such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person in good
faith in accordance with this Guarantee Agreement and in a
manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified
Person in accordance with this Guarantee Agreement, except
that no Indemnified Person shall be entitled to be
17<PAGE>
indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of negligence or
willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Guarantor prior
to the final disposition of such claim, demand, action, suit
or proceeding upon receipt by the Guarantor of an
undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as
authorized in Section 8.2(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders of the Preferred Securities then outstanding.
SECTION 9.2. Amendments.
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will
be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of at least 66-2/3% in liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to
the date upon which the voting percentages are determined) of all the
outstanding Preferred Securities. The provisions of Section 12.2 of
the Declaration with respect to meetings of Holders of the Securities
apply to the giving of such approval.
SECTION 9.3. Notices.
All notices provided for in this Guarantee Agreement shall be in
writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as
follows:
(a) If given to the Preferred Guarantee Trustee, at the
Preferred Guarantee Trustee's mailing address set forth
below (or such other address as the Preferred Guarantee
Trustee may give notice of to the Holders of the Preferred
Securities):
18<PAGE>
Wilmington Trust Company
Rodney Square North
1100 N. Market Street
Wilmington, Delaware 19890-0001
Attn: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the
Guarantor may give notice of to the Holders of the Preferred
Securities):
NorthWestern Corporation
125 S. Dakota Avenue, Suite 1100
Sioux Falls, South Dakota 57104
(c) If given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address
of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability
to deliver.
SECTION 9.4. Benefit.
The guarantee provided pursuant to Section 5.1 is solely for the
benefit of the Holders and the Preferred Guarantee Trustee and,
subject to Section 3.1(a), is not separately transferable from the
Preferred Securities.
SECTION 9.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
19<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
NORTHWESTERN CORPORATION
By:/s/ Richard R. Hylland
------------------------------------
Richard R. Hylland
President and Chief Operating Officer
WILMINGTON TRUST COMPANY,
as Preferred Guarantee Trustee
By:/s/ Donald G. Mackelcan
------------------------------------
Name: Donald G. Mackelcan
Title: Assistant Vice President
20<PAGE>
