As filed with the Securities and Exchange Commission on July 2, 1998
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Northwestern Corporation Delaware 46-0172280
Northwestern Capital Financing I Delaware Applied for
Northwestern Capital Financing II Delaware Applied for
Northwestern Capital Financing III Delaware Applied for
(Exact name of registrant as (State or other juris- (I.R.S. Employer
specified in its charter) diction of incorpora- Identification
tion or organization) No.)
33 Third St. SE
Huron, South Dakota 57350-1605
(605) 352-8411
(Address, including zip code and telephone number, including
area code, of registrant's principal executive offices)
Alan D. Dietrich
Vice President - Law & Corporate Secretary
NORTHWESTERN CORPORATION
600 Market Street West
Huron, South Dakota 57350-1500
(605) 353-7606
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
Robert J. Minkus
Schiff Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]<PAGE>
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities only in connection
with dividend or interest reinvestment plans, check the following box.
[x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
Calculation of Registration Fee
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of each class of Amount to be price per offering registration
securities to be registered registered unit (1) price (1) fee
------------------------------------------ ----------------- --------- --------- ------------
<S> <C> <C> <C> <C>
Mortgage Bonds (2) . . . . . . . . . . .
Senior Debt Securities (3) . . . . . . .
Subordinated Debt Securities (4) . . . .
Cumulative Preferred Stock,
$100 par value (5) . . . . . . . . .
Preference Stock, $50 par value (6) . . $500,000,000 (10) 100% $500,000,000 $147,500
Common Stock, $1.75 par value
and related Common Stock
Purchase Rights (7) . . . . . . . . .
Preferred Securities of
Subsidiary Trusts (8) (9) . . . . . .
Common Stock, $1.75 par value,
and related Common Stock
Purchase Rights . . . . . . . . . . . (11) (12) (12) (12)
Common Stock, $1.75 par value,
and related Common Stock
Purchase Rights (13) . . . . . . . . 1,279,476 $24.484375 $31,327,170 $9,242
(14) (14)
(1) Estimated solely for the purpose of calculating the registration fee.
ii<PAGE>
(2) In no event will the aggregate initial price of the Mortgage Bonds exceed $500,000,000 (or the equivalent
thereof in one or more foreign currencies or composite currencies) or, if any such Mortgage Bonds are issued
at an original issue discount, such greater principal amount as shall result in an aggregate initial offering
price of $500,000,000.
(3) In no event will the aggregate initial price of the Senior Debt Securities exceed $500,000,000 (or the
equivalent thereof in one or more foreign currencies or composite currencies) or, if any such Senior Debt
Securities are issued at an original issue discount, such greater principal amount as shall result in an
aggregate initial offering price of $500,000,000.
(4) In no event will the aggregate initial price of the Subordinated Debt Securities exceed $500,000,000 (or the
equivalent thereof in one or more foreign currencies or composite currencies) or, if any such Subordinated
Debt Securities are issued at an original issue discount, such greater principal amount as shall result in an
aggregate initial offering price of $500,000,000.
(5) In no event will the aggregate initial price of the Cumulative Preferred Stock exceed $500,000,000.
(6) In no event will the aggregate initial price of the Preference Stock exceed $500,000,000.
(7) In no event will the aggregate initial price of the Common Stock exceed $500,000,000 or, if applicable, such
lesser amount as is provided in Rule 415.
(8) In no event will the aggregate initial price of the Preferred Securities of Subsidiary Trusts exceed
$500,000,000 (or the equivalent thereof in one or more foreign currencies or composite currencies) or, if any
such Preferred Securities are issued at an original issue discount, such greater principal amount as shall
result in an aggregate initial offering price of $500,000,000.
(9) Includes the guarantees of Northwestern Corporation, for which no separate consideration will be received.
(10) In no event will the aggregate initial price of the Mortgage Bonds, Senior Debt Securities, Subordinated Debt
Securities, Cumulative Preferred Stock, Preference Stock and Common Stock referred to in footnotes (2)
through (7) (or, where Subordinated Debt Securities are issued to Subsidiary Trusts, Preferred Securities of
Subsidiary Trusts referred to in footnote (8)) exceed $500,000,000.
(11) Such indeterminate number of shares of Common Stock as may be issuable upon conversion or exchange of any
Mortgage Bonds, Senior Debt Securities, Subordinated Debt Securities, Cumulative Preferred Stock or
Preference Stock that provide for conversion or exchange into Common Stock.
(12) No separate consideration will be received for the shares of Common Stock issued upon conversion or exchange
of Mortgage Bonds, Senior Debt Securities, Subordinated Debt Securities, Cumulative Preferred Stock or
Preference Stock.
(13) Issuable upon exercise of outstanding warrants to purchase Common Stock held by selling securityholders.
(14) Based on the average of the high and low sale prices of the Common Stock on June 25, 1998, as reported in the
consolidated reporting system.
</TABLE>
The registrants hereby amend this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
registrants shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1993 or until
this Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
iii<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT
BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JULY 2, 1998
PROSPECTUS
[LOGO]
$500,000,000
NORTHWESTERN CORPORATION
MORTGAGE BONDS
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
CUMULATIVE PREFERRED STOCK
PREFERENCE STOCK
COMMON STOCK
NORTHWESTERN CAPITAL FINANCING I
NORTHWESTERN CAPITAL FINANCING II
NORTHWESTERN CAPITAL FINANCING III
PREFERRED SECURITIES
Guaranteed to the extent set forth herein by
Northwestern Corporation
______________________
1,279,476 Shares
NORTHWESTERN CORPORATION
COMMON STOCK
Offered by Certain Selling Stockholders
_____________________________________________________
Northwestern Corporation, a Delaware corporation formerly named
Northwestern Public Service Company (the "Company"), may from time to
time offer (i) its Mortgage Bonds, in one or more series ("Mortgage
Bonds"); (ii) its Senior Debt Securities, which may consist of
debentures, notes and/or other unsecured evidences of indebtedness in
one or more series ("Senior Debt Securities"); (iii) its Subordinated
Debt Securities, which may consist of debentures, notes and/or other
unsecured evidences of indebtedness, subordinated to the extent set
forth therein, in one or more series ("Subordinated Debt Securities"
and, together with the Senior Debt Securities, "Debt Securities");
(iv) shares of its Cumulative Preferred Stock, $100 par value, in one
or more series ("Preferred Stock"); (v) shares of its Preference
Stock, $50 par value, in one or more series ("Preference Stock"); and<PAGE>
(iv) shares of its Common Stock, $1.75 par value (including related
Common Stock Purchase Rights) ("Common Stock") at an aggregate initial
offering price not to exceed $500,000,000 at prices and on terms to be
determined at the time of sale.
Northwestern Capital Financing I, Northwestern Capital Financing
II and Northwestern Capital Financing III, each a statutory business
trust formed under the laws of the State of Delaware (a "Trust"), may
offer, from time to time, preferred securities representing undivided
beneficial interests in the assets of the respective Trusts
("Preferred Securities") at an aggregate initial offering price not to
exceed $500,000,000 at prices and on terms to be determined at the
time of sale. The Company will own all of the common securities of
each Trust, and the sole assets of each Trust will be a series of the
Company's Subordinated Debt Securities. The payment of periodic cash
distributions with respect to the Preferred Securities and common
securities (collectively, "Trust Securities") of a Trust and payments
on redemption of the Trust Securities or liquidation of the Trust, in
each case out of funds held by the Trust, will be guaranteed by the
Company to the extent described herein (the "Guarantees").
In addition, certain persons (the "Selling Stockholders") may
offer, from time to time, up to an aggregate of 1,279,476 shares of
Common Stock, at prices and on terms to be determined at the time of
sale.
The Mortgage Bonds, Debt Securities, Preferred Stock, Preference
Stock and Common Stick of the Company, and the Preferred Securities of
the Trusts (together with the related Guarantees of the Company), are
collectively referred to as the "Securities."
Securities will be offered at prices and on terms to be
determined and which will be set forth in one or more supplements to
this Prospectus (each, a "Prospectus Supplement"). Each Prospectus
Supplement will set forth with regard to the particular Securities
being offered by the Company or a Trust: (i) in the case of Mortgage
Bonds and Debt Securities, the title, aggregate offering amount,
denominations (which may be in United States dollars or a foreign
currency or currency unit), maturity, interest rate, if any (which may
be fixed or variable), or the method of calculation of interest,
interest payment dates, any terms for deferring payment of interest at
the election of the Company, any terms for redemption at the option of
the Company or the holder, any terms for sinking fund payments, any
conversion or exchange rights, any listing on a securities exchange,
the initial offering price and any other terms in connection with the
offering and sale of such Mortgage Bonds or Debt Securities; (ii) in
the case of Preferred Stock or Preference Stock, the designation,
aggregate offering amount, stated value and liquidation preference per
share, dividend rate, or the method of calculation, dividend payment
dates, dates from which dividends will accrue, any redemption or
sinking fund provisions, any conversion or exchange rights, any
listing of the Preferred Stock or Preference Stock on a securities
2<PAGE>
exchange, the initial offering price and any other terms in connection
with the offering and sale of such Preferred Stock or Preference
Stock; (iii) in the case of Common Stock, the number of shares and the
terms of offering thereof; and (iv) in the case of Preferred
Securities of a Trust, the identity of the Trust, title, aggregate
offering amount, stated liquidation preference, denominations,
maturity, distribution rate, if any (which may be fixed or variable),
or the method of calculation of distributions, distribution payment
dates, any terms on which distributions may be deferred, any terms for
redemption at the option of the Company or the holder, any terms for
sinking fund payments, any conversion or exchange rights, any listing
on a securities exchange, the initial offering price and any other
terms in connection with the offering and sale of such Preferred
Securities. Each Prospectus Supplement relating to Common Stock being
offered by one or more Selling Stockholders will set forth the
identity of each offering Selling Stockholder, the number of shares
being offered and the terms of offering thereof. The Prospectus
Supplement will also contain information, as applicable, about certain
United States Federal income tax considerations relating to the
particular Securities being offered.
The Common Stock is listed on the New York Stock Exchange under
the symbol "NOR." Any Common Stock sold pursuant to a Prospectus
Supplement will be approved for listing, subject to notice of
issuance, on such exchange.
The Company, the Trusts and the Selling Stockholders may sell
Securities to or through underwriters and may also sell Securities
directly to other purchasers or through agents. The accompanying
Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be
purchased by each underwriter and the compensation, if any, of such
underwriters or agents. See "Plan of Distribution."
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is ______________________, 1998.
3<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information can be inspected and
copied at the offices of the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549; 500 West Madison Street, 14th
Floor, Chicago, Illinois 60661-2511; and 7 World Trade Center, 13th
Floor, New York, New York 10048. Copies of such material can be
obtained at prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission also maintains a site on the World Wide Web that contains
reports, proxy statements and other information regarding the Company.
The address of the Commission's Web site is http://www.sec.gov. In
addition, the Company's reports and proxy statements may be inspected
at the offices of the New York Stock Exchange at 20 Broad Street, New
York, New York 10005.
The Company has filed with the Commission a Registration
Statement on Form S-3 (including any amendments thereto, the
"Registration Statement") under the Securities Act of 1933 (the
"Securities Act") with respect to the Securities offered hereby. This
Prospectus, which constitutes a part of the Registration Statement,
does not contain all of the information set forth in the Registration
Statement. For further information about the Company and the
Securities, reference is made to the Registration Statement and the
exhibits thereto, which may be inspected at the public reference
facilities maintained by the Commission at the addresses set forth
above or through the Commission's Web site.
No separate financial statements of any Trust have been included
herein. The Company and the Trusts do not consider that such
financial statements would be material to the holders of the Trusts'
Preferred Securities because each Trust is a special purpose entity,
with no operating history or independent operations, which is not
engaged in and does not propose to engage in any activity other than
holding as trust assets the Subordinated Debt Securities of the
Company and issuing its Trust Securities as described below.
Furthermore, taken together, the Company's obligations under the
Subordinated Debt Securities held by a Trust, the indenture under
which such Subordinated Debt Securities are issued, the applicable
Trust Declaration and the related Guarantee provide, in the aggregate,
a full, irrevocable and unconditional guarantee of payment in respect
of the Preferred Securities. For this same reason, the Company does
not expect that any Trust will file reports with the Commission
pursuant to the Exchange Act.
4<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated by reference in this
Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ending March 31, 1998.
3. The description of the Common Stock contained in the
Company's registration statement on Form S-3 (registration
no. 33-60423), and any document filed which updates such
description.
4. The description of the Company's Common Stock Purchase
Rights contained in the Company's registration statement on
Form 8-A, dated December 11, 1996, and any document filed
which updates such description.
5. All documents filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering made by this
Prospectus also shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of
such documents.
Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a
copy of this Prospectus has been delivered, on request of such person,
a copy of any or all of the documents referred to above which have
been or may be incorporated in this Prospectus by reference, other
than exhibits to such documents. Requests for copies should be
directed to Alan D. Dietrich, Vice President - Law and Corporate
Secretary, Northwestern Corporation, 600 Market Street West, Huron,
South Dakota 57350-1500, telephone number: (605) 353-7606.
5<PAGE>
NORTHWESTERN
The Company is a nationwide diversified energy,
telecommunications and related services provider. It generates and
distributes electric energy to approximately 56,000 customers in
eastern South Dakota. The Company also purchases, distributes, sells
and transports natural gas to approximately 79,000 customers in
central Nebraska and eastern South Dakota. The Company, through its
majority-owned subsidiaries, also owns approximately 35% of
Cornerstone Propane Partners, L.P., a publicly traded master limited
partnership for which a subsidiary of the Company serves as managing
general partner. Cornerstone serves more than 380,000 propane
customers in 26 states. The Company, through its consolidated and
unconsolidated subsidiaries, is also engaged in certain non-energy
manufacturing industries and owns companies engaged in heating,
ventilation and air conditioning and telecommunications services. The
Company was incorporated under the laws of the State of Delaware in
1923. The Company has its principal office at 33 Third Street SE,
Huron, South Dakota 57350-1605. Its telephone number is (605) 352-
8411.
THE TRUSTS
Each of Northwestern Capital Financing I, Northwestern Capital
Financing II and Northwestern Capital Financing III is a statutory
business trust formed under Delaware law pursuant to (i) a declaration
of trust executed by the Company, as sponsor, and the Capital
Financing Trustees (as defined below), as trustees (as such
declaration may be amended from time to time, the "Trust
Declaration"), and (ii) the filing of a certificate of trust with the
Secretary of State of the State of Delaware. Each Trust exists for
the exclusive purposes of (i) issuing the Trust Securities of such
Trust, (ii) investing the gross proceeds from the sale of the Trust
Securities in the Subordinated Debt Securities of the Company and
(iii) engaging in only those other activities necessary or incidental
thereto. All of the common securities representing undivided
beneficial interests in the assets of a Trust (the "Common
Securities") will be directly or indirectly owned by the Company. The
Common Securities will rank pari passu, and payments will be made
thereon pro rata, with the Preferred Securities, except that, upon an
event of default under the applicable Trust Declaration, the rights of
the holders of the Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise
will be subordinated to the rights of the holders of the Preferred
Securities. The Company will directly or indirectly acquire Common
Securities in an aggregate liquidation amount equal to 3% of the total
capital of each Trust. Each Trust has a term of approximately 55
years but may terminate earlier, as provided in the applicable Trust
Declaration. The Company will pay all fees and expenses related to
the Trusts and the offering of the Trust Securities, the payment of
which will be guaranteed by the Company as described under
"Description of the Guarantees." The principal place of business of
6<PAGE>
each Trust is c/o the Company, 33 Third Street S.E., Huron, South
Dakota, 57350-1318, telephone (605) 352-8411.
The business and affairs of each Trust will be conducted by the
trustees (the "Capital Financing Trustees") appointed by the Company
as the direct or indirect holder of all the Common Securities. A
majority of the Capital Financing Trustees will be persons who are
employees or officers of or who are affiliated with the Company. One
Capital Financing Trustee of each Trust will be a financial
institution that is not affiliated with the Company and has aggregate
capital, surplus and undivided profits of not less than $50,000,000,
which institution will act as property trustee under the applicable
Trust Declaration (the "Property Trustee") and as an indenture trustee
for purposes of the Trust Indenture Act of 1939 (the "Trust Indenture
Act"). In addition, unless the Property Trustee maintains a principal
place of business in the State of Delaware and otherwise meets the
requirements of applicable law, one Capital Financing Trustee of each
Trust will have a principal place of business or reside in the State
of Delaware (the "Delaware Trustee"). The initial Property Trustee of
each Trust is Wilmington Trust Company, a Delaware banking
corporation, which maintains a principal place of business in
Delaware. The holder of the Common Securities will be entitled to
appoint, remove or replace any of, or increase or reduce the number
of, the Capital Financing Trustees of each Trust. The duties and
obligations of the Capital Financing Trustees for each Trust will be
governed by the applicable Trust Declaration.
USE OF PROCEEDS
Except as may be set forth in the applicable Prospectus
Supplement, the net proceeds from the sale of any Securities offered
by the Company will be used for general corporate purposes, which may
include the repayment of indebtedness, capital expenditures, working
capital and other investments in, or acquisitions of, businesses and
assets. Pending application of such net proceeds for specific
purposes, such proceeds may be invested in short-term or marketable
securities. Specific allocations of proceeds to a particular purpose
that have been made at the date of any Prospectus Supplement will be
described therein.
Each Trust will use all of the proceeds received from the sale of
its Trust Securities to purchase Subordinated Debt Securities from the
Company. Unless otherwise set forth in the applicable Prospectus
Supplement, the net proceeds to the Company from the sale of
Subordinated Debt Securities to a Trust will be added to the Company's
general funds and used for general corporate purposes.
Neither the Company nor any Trust will receive any proceeds from
Securities sold by any Selling Stockholder.
7<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
The following table sets forth the ratios of earnings to fixed
charges and earnings to combined fixed charges and preferred dividends
for the Company for the fiscal years ended December 31, 1993, 1994,
1995, 1996 and 1997, and for the three-month period ended March 31,
1998. For the purpose of calculating such ratios, "earnings" consist
of income from continuing operations before income taxes and minority
interest, "fixed charges" consist of interest on all indebtedness,
amortization of debt expense and the percentage of rental expense on
operating leases deemed representative of the interest factor, and
"preferred dividends" represent dividends paid on all preferred shares
(consisting solely of shares of Cumulative Preferred Stock)
outstanding during the periods.
<TABLE>
<CAPTION>
Quarter
YEAR ENDED DECEMBER 31, Ended
March 31,
1993 1994 1995 1996 1997 1998(1)
---- ---- ---- ---- ---- ---------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges . . 3.5 3.4 3.4 3.2 3.0 4.3
Ratio of Earnings to Combined
Fixed Charges and Preferred
Dividends . . . . . . . . . . . . . 3.5 3.4 3.1 2.7 2.6 5.2
_______________
(1) Results for quarter ended March 31, 1998 are not necessarily indicative of results for the year ended
December 31, 1998.
</TABLE>
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The Company's Common Stock is listed on the New York Stock
Exchange under the symbol "NOR." The following table sets forth, for
the calendar quarters shown, the range of high and low composite
prices of the Common Stock on the New York Stock Exchange and the cash
dividends declared on the Common Stock, in each case as adjusted for
the two-for-one stock split in May 1997.
<TABLE>
<CAPTION>
Dividends
High Low Declared
---- --- ---------
<S> <C> <C> <C> <C>
1996
First quarter . . . . . . . . . . $15-1/8 $13-3/4 $.22
Second quarter . . . . . . . . . 14-13/16 13-5/8 .22
Third quarter . . . . . . . . . . 15-9/16 16-7/16 .22
Fourth quarter . . . . . . . . . 18-1/4 15 .23
1997
First quarter . . . . . . . . . . 19-3/4 16-15/16 .23
Second quarter . . . . . . . . . 22-1/4 18-5/16 .23
Third quarter . . . . . . . . . . 21-1/4 17-3/4 .23
Fourth quarter . . . . . . . . . 23-1/2 18-7/16 .2425
8<PAGE>
Dividends
High Low Declared
---- --- ---------
1998
First quarter . . . . . . . . . . 24 21-15/16 .2425
Second quarter . . . . . . . . . . 25-1/4 20-1/4 .2425
</TABLE>
DESCRIPTION OF MORTGAGE BONDS
The Mortgage Bonds will be bonds, notes or other evidences of
indebtedness authenticated and delivered under a General Mortgage
Indenture 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 (the "Bond Trustee"). Such General
Mortgage and Deed of Trust, as supplemented by various supplemental
indentures, is hereinafter referred to as the "Mortgage." A copy of
the Mortgage, as supplemented to date, has been filed as an exhibit to
the Registration Statement of which this Prospectus forms a part, and
the supplemental indenture relating to each series of Mortgage Bonds
will be filed as an exhibit to or incorporated by reference in the
Registration Statement at or prior to the time of issuance of such
series of Mortgage Bonds. The following summary of certain provisions
of the Mortgage does not purport to be complete and is subject to, and
qualified in its entirety by, the provisions of the Mortgage,
including the definitions set forth therein. Capitalized terms used
under this heading which are not otherwise defined in this Prospectus
have the meanings given them in the Mortgage. References to article
and section numbers in this description of the Mortgage Bonds, unless
otherwise indicated, are references to article and section numbers of
the Mortgage.
GENERAL
The maximum principal amount of Mortgage Bonds which may be
issued under the Mortgage is limited to $500,000,000, provided that,
without the consent of the holders of outstanding Mortgage Bonds, the
Company and the Bond Trustee may enter into supplemental indentures to
increase such amount. As of June 15, there were outstanding $25
million of 6.99% Series Mortgage Bonds due 2002, $60 million of 7.10%
Series Mortgage Bonds due 2005 and $55 million of 7% Series Mortgage
Bonds due 2023. Additional Mortgage Bonds may be issued under the
Mortgage on the basis of property additions, retired bonds and cash.
See "Issuance of Additional Mortgage Bonds" below. The Prospectus
Supplement relating to the series of Mortgage Bonds offered thereby
(the "Offered Mortgage Bonds") will describe the following terms of
the Offered Mortgage Bonds: (i) the title (series designation) of the
Offered Mortgage Bonds; (ii) any limit upon the aggregate principal
amount of Offered Mortgage Bonds; (iii) the percentage of the
principal amount at which the Offered Mortgage Bonds will be issued
9<PAGE>
and, if other than the principal amount thereof, the portion of the
principal amount thereof payable upon acceleration of the maturity
thereof, or the method by which such portion will be determined; (iv)
the date or dates on which the principal of the Offered Mortgage Bonds
will be payable; (v) the rate or rates at which the Offered Mortgage
Bonds will bear interest, if any, or the method by which such rate or
rates will be determined, the date or dates from which such interest
will accrue, or the method by which such date or dates will be
determined; (vi) the dates on which such interest will be payable and
the regular record dates for any interest payment dates and the basis
on which interest will be calculated; (vii) the bases on which the
Offered Mortgage Bonds will be issued; (viii) the option, if any, of
the Company to redeem the Offered Mortgage Bonds and the periods
within which or the dates on which, the prices at which and the terms
and conditions upon which the Offered Mortgage Bonds may be redeemed,
in whole or in part, upon the exercise of such option; (ix) the
obligation, if any, of the Company to redeem or purchase the Offered
Mortgage Bonds pursuant to any sinking fund or analogous provisions or
at the option of the holder and the periods within which or the dates
on which, the prices at which and the terms and conditions upon which
the Offered Mortgage Bonds will be redeemed, in whole or in part,
pursuant to such obligation; (x) the denominations in which the
Offered Mortgage Bonds will be issuable and any provision for the
Offered Mortgage Bonds to be denominated, and payments thereon to be
made, in currencies other than the United States dollar or in units
based on or relating to such other currencies; and (ix) any other
terms of the Offered Mortgage Bonds not inconsistent with the
provisions of the Mortgage.
While the Mortgage contains provisions for the maintenance of the
Mortgaged Property, it does not contain any provisions for a
maintenance or sinking fund and, except as may be provided in a
Supplemental Indenture (and described in the applicable Prospectus
Supplement), there will be no provisions for any such funds for the
Mortgage Bonds.
Mortgage Bonds may be issued as discount bonds, which may be sold
at a discount below their principal amount. These Mortgage Bonds, as
well as other Mortgage Bonds that are not issued at a discount below
their principal amount, may, for United States Federal income tax
purposes, be deemed to have been issued with "original issue discount"
because of, among other things, certain interest payment
characteristics. Special United States Federal income tax
considerations applicable to Offered Mortgage Bonds issued with
original issue discount, including discount bonds, will be described
in more detail in the applicable Prospectus Supplement. In addition,
special United States Federal income tax considerations or other
restrictions or terms applicable to any Offered Mortgage Bonds which
are issuable in bearer form, offered exclusively to United States
aliens, denominated in a currency other than United States dollars or
having certain other characteristics will be set forth in the
Prospectus Supplement relating thereto.
10<PAGE>
Other than the security afforded by the lien of the Mortgage and
the restrictions on the issuance of additional Mortgage Bonds, there
are no provisions of the Mortgage which afford the holders of the
Offered Mortgage Bonds protection in the event of a highly leveraged
transaction, reorganization, restructuring, merger or similar
transaction involving the Company. See "Consolidation, Merger,
Conveyance, Transfer or Lease" below.
REDEMPTION OF THE MORTGAGE BONDS
Any terms for the optional or mandatory redemption of the Offered
Mortgage Bonds will be set forth in the applicable Prospectus
Supplement. Except as otherwise be provided in the applicable
Prospectus Supplement with respect to Mortgage Bonds redeemable at the
option of the holder, Mortgage Bonds will be redeemable only upon
notice by mail not less than 30 days prior to the date fixed for
redemption, and, if less than all the Mortgage Bonds of a series, or
any tranche thereof, are to be redeemed, the particular Mortgage Bonds
to be redeemed will be selected by such method as shall be provided
for the particular series or tranche, or in the absence of any such
provision, by such method as the Bond Registrar deems fair and
appropriate. (See Sections 5.03 and 5.04.)
Any notice of redemption at the option of the Company may state
that such redemption will be conditioned upon receipt by the Bond
Trustee, on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and interest,
if any, on such Mortgage Bonds and that if such money has not been so
received, such notice will be of no force and effect and the Company
will not be required to redeem such Mortgage Bonds. (See Section
5.04.)
SECURITY
Except as discussed below, Mortgage Bonds now or hereafter issued
under the Mortgage will be secured primarily by the lien of the
Mortgage on the Company's properties used in the generation,
production, transmission or distribution of electricity or the
distribution of gas in any form and for any purpose in the States of
South Dakota or Nebraska, together with the properties owned by the
Company as of August 1, 1993 located in the States of North Dakota and
Iowa (which consist principally of shared ownership interests in
electric generating facilities), but not, unless the Company otherwise
elects, any future acquired properties in the States of North Dakota
and Iowa.
The lien of the Mortgage is subject to permitted liens which
include tax liens and other governmental charges which are not
delinquent and which are being contested, construction and
materialmen's liens, certain judgment liens, easements, reservations
and rights of others (including governmental entities) in, and defects
of title in, certain property of the Company, certain leasehold
interests, liens on the Company's pollution control and sewage and
11<PAGE>
solid waste facilities and certain other liens and encumbrances. (See
Section 1.01.)
There are excepted from the lien of the Mortgage, among other
things, cash and securities not paid to, deposited with or held by the
Bond Trustee under the Mortgage; contracts, leases and other
agreements of all kinds, contract rights, bills, notes and other
instruments, accounts receivable, claims, certain intellectual
property rights and other general intangibles; permits, licenses and
franchises; automobiles, other vehicles, movable equipment, aircraft
and vessels; all goods, wares and merchandise held for sale in the
ordinary course of business or for use by or for the benefit of the
Company; fuel, materials, supplies and other personal property
consumable in the operations of the Company's business; computers,
machinery and equipment; coal, ore, gas, oil, minerals and timber
mined or extracted from the land; gas transmission lines connecting
wells with main or branch trunk lines or field gathering lines
connecting wells with main or branch trunk lines; electric energy,
gas, steam, water and other products generated, produced or purchased;
leasehold interests; and all books and records. (See Granting
Clauses.)
Without the consent of the holders of any Mortgage Bonds, the
Company and the Bond Trustee may enter into supplemental indentures to
subject to the lien of the Mortgage additional property, whether or
not used in the electric or gas utility businesses (including property
which would otherwise be excepted from such lien). (See Section
14.01.) Such property, so long as the same would otherwise constitute
Property Additions (as described below), would thereupon constitute
Property Additions and be available as a basis for the issuance of
Mortgage Bonds. See "Issuance of Additional Mortgage Bonds" below.
The Mortgage contains provisions subjecting after-acquired
property to the lien of the Mortgage. These provisions are limited in
the case of consolidation or merger (whether or not the Company is the
surviving corporation) or sale of substantially all of the Company's
assets. In the event of the consolidation or merger of the Company or
the transfer of all the Mortgaged Property as or substantially as an
entirety, the Mortgage will not be required to be a lien upon any of
the properties then owned or thereafter acquired by the successor
corporation, except properties acquired from the Company in or as a
result of such transaction and improvements, extensions and additions
to such properties and renewals, replacements and substitutions of or
for any part or parts of such properties. (See Article Thirteen and
"Consolidation, Merger, Conveyance, Transfer or Lease" below.) In
addition, after-acquired property may be subject to vendors' liens,
purchase money mortgages and other liens thereon at the time of
acquisition.
The Mortgage provides that the Bond Trustee will have a lien,
prior to the lien on behalf of the holders of Mortgage Bonds, upon
Mortgaged Property and any money collected by the Bond Trustee as
12<PAGE>
proceeds of the Mortgaged Property, for the payment of its reasonable
compensation and expenses and for indemnity against certain
liabilities. (See Section 11.07.)
ISSUANCE OF ADDITIONAL MORTGAGE BONDS
The maximum principal amount of Mortgage Bonds which may be
issued under the Mortgage is limited to $500,000,000, provided that,
without the consent of the holders of any Mortgage Bonds, the Company
and the Bond Trustee may enter into supplemental indentures to
increase such amount. (See Sections 3.01 and 14.01.) Mortgage Bonds
of any series may be issued from time to time under Article Four of
the Mortgage on the basis of, and in an aggregate principal amount not
exceeding:
(1) 75% of the cost or fair value (whichever is less) of
Property Additions which do not constitute "bonded" Property
Additions (generally, Property Additions which have been made the
basis of the authentication and delivery of Mortgage Bonds, the
release of Mortgaged Property or cash withdrawals) after certain
deductions and additions, primarily including adjustments to
offset property retirements;
(2) the aggregate principal amount of "Retired Bonds"
(which consist of Mortgage Bonds no longer outstanding under the
Mortgage (including Mortgage Bonds deposited under any sinking or
analogous funds) which have not been used for certain other
purposes under the Mortgage and which are not to be paid,
redeemed or otherwise retired by the application of funded cash);
and
(3) an amount of cash deposited with the Bond Trustee.
In general, the issuance of Mortgage Bonds is subject to Adjusted
Net Earnings of the Company (as described below) for 12 consecutive
months within the preceding 18 months being at least one and three-
fourths the Annual Interest Requirements on all Mortgage Bonds then
outstanding or applied for, and all other indebtedness (with certain
exceptions) secured by a lien prior to the lien of the Mortgage,
except that no such net earnings requirement need be met if the
additional Mortgage Bonds to be issued are to have no stated interest
rate prior to maturity. The Company is not required to satisfy the
net earnings requirement prior to issuance of Mortgage Bonds in
replacement of Retired Bonds unless (a) the stated maturity of the
Retired Bonds is more than five years after the date of the Company's
order to authenticate and deliver such additional Mortgage Bonds and
(b) the stated interest rate, if any, on such Retired Bonds
immediately prior to maturity is less than the initial stated interest
rate, if any, on such Mortgage Bonds. In general, the interest
requirement with respect to variable interest rate indebtedness, if
any, is determined with reference to the rate or rates in effect on
the date immediately preceding such determination or the rate to be in
13<PAGE>
effect upon initial authentication. (See Section 1.03 and Article
Four.)
Adjusted Net Earnings are calculated before, among other things,
provisions for income taxes; depreciation or amortization of property;
interest on any indebtedness and amortization of debt discount and
expense; any non-recurring charge to income of whatever kind or nature
(including without limitation the recognition of expense or impairment
due to the non-recoverability of assets or expense), whether or not
recorded as a non-recurring item in the Company's books of account;
and any refund of revenues previously collected or accrued by the
Company subject to possible refund. With respect to Mortgage Bonds of
a series subject to a periodic offering (such as a medium-term note
program), the Bond Trustee will be entitled to receive a certificate
evidencing compliance with the net earnings requirements only once, at
or prior to the time of the first authentication and delivery of the
Mortgage Bonds of such series (unless the Company's order requesting
the authentication and delivery of such Mortgage Bonds is delivered on
or after the date which is two years after the most recent net
earnings certificate was delivered, in which case an updated
certificate would be required to be delivered). (See Sections 1.03
and 4.01.)
Property Additions generally include any property which is owned
by the Company and is subject to the lien of the Mortgage, except any
property the cost of acquisition or construction of which is properly
chargeable to an operating expense account of the Company. (See
Section 1.04.)
RELEASE OF PROPERTY
The Company may obtain the release from the lien of the Mortgage
of any Mortgaged Property if the fair value of all of the Mortgaged
Property (excluding the Mortgaged Property to be released but
including any Mortgaged Property to be acquired by the Company with
the proceeds of, or otherwise in connection with, such release) equals
or exceeds an amount equal to twenty-fifteenths (20/15ths) of the
aggregate principal amount of Mortgage Bonds outstanding.
The Mortgage provides simplified procedures for the release of
minor properties and property taken by eminent domain and provides for
dispositions of certain obsolete property and grants of surrender of
certain rights without any release or consent by the Bond Trustee.
If any property released from the lien of the Mortgage continues
to be owned by the Company after such release, the Mortgage will not
become a lien on any improvement, extension or addition to such
property or renewals, replacements or substitutions of or for any part
or parts of such property. (See Article Eight.)
14<PAGE>
WITHDRAWAL OF CASH
Subject to certain limitations, cash held by the Bond Trustee may
(1) be withdrawn by the Company (a) to the extent of the cost or fair
value (whichever is less) of unbonded Property Additions, after
certain deductions and additions primarily including adjustments to
offset retirements, or (b) in an amount equal to twenty-fifteenths
(20/15ths) of the aggregate principal amount of Mortgage Bonds that
the Company would be entitled to issue on the basis of Retired Bonds
(with the entitlement to such issuance being waived by operation of
such withdrawal), or (c) in an amount equal to twenty-fifteenths
(20/15ths) of the aggregate principal amount of any outstanding
Mortgage Bonds delivered to the Bond Trustee, or (2) upon the request
of the Company, be applied to (a) the purchase of Mortgage Bonds (at
prices not exceeding twenty-fifteenths (20/15ths) of the principal
amount thereof) or (b) the redemption or payment at stated maturity of
Mortgage Bonds (with any Mortgage Bonds received by the Bond Trustee
pursuant to these provisions being canceled by the Bond Trustee) (see
Section 8.06); provided, however, that cash deposited with the Bond
Trustee as the basis for authentication and delivery of Mortgage
Bonds, may only be withdrawn in an amount equal to the aggregate
principal amount of Mortgage Bonds the Company would be entitled to
issue on any basis (with the entitlement to such issuance being waived
by operation of such withdrawal), or may, upon the request of the
Company, be applied to the purchase, redemption or payment of Mortgage
Bonds at prices not exceeding, in the aggregate, the principal amount
thereof (See Sections 4.05 and 7.02).
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
The Company may not consolidate with or merge into any other
corporation or convey, transfer or lease the Mortgaged Property as or
substantially as an entirety to any person unless (a) such transaction
is on such terms as will fully preserve the lien and security of the
Mortgage and the rights and powers of the Bond Trustee and the holders
of Mortgage Bonds, (b) the corporation formed by such consolidation or
into which the Company is merged or the person which acquires by
conveyance or transfer, or which leases, the Mortgaged Property as or
substantially as an entirety is a corporation organized and existing
under the laws of the United States of America or any state or
territory thereof or the District of Columbia, and such corporation
executes and delivers to the Bond Trustee a supplemental indenture,
which contains an assumption by such corporation of the due and
punctual payment of the principal of and premium, if any, and
interest, if any, on the Mortgage Bonds and the performance of all of
the covenants of the Company under the Mortgage and which contains a
grant, conveyance, transfer and mortgage by the corporation confirming
the lien of the Mortgage on the Mortgaged Property and subjecting to
such lien all property thereafter acquired by the corporation which
constitutes an improvement, extension or addition to the Mortgaged
Property or a renewal, replacement or substitution of or for any part
thereof, and, at the election of the corporation, subjecting to the
15<PAGE>
lien of the Mortgage such other property then owned or thereafter
acquired by the corporation as the corporation may specify, and (c) in
the case of a lease, such lease will be made expressly subject to
termination by the Company or the Bond Trustee at any time during the
continuance of an Event of Default under the Mortgage. (See Section
13.01.)
The Mortgage does not contain provisions requiring the repurchase
of the Offered Mortgage Bonds upon the change in control of the
Company.
MODIFICATION OF MORTGAGE
Without the consent of the holders of any Mortgage Bonds, the
Company and the Bond Trustee may enter into one or more supplemental
indentures for any of the following purposes:
(a) to evidence the succession of another person to the
Company and the assumption by any such successor of the covenants
of the Company in the Mortgage and in the Mortgage Bonds; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all holders of Mortgage Bonds or
for the benefit of the holders of, or to remain in effect only so
long as there are outstanding, Mortgage Bonds of one or more
specified series, or one or more tranches thereof, or to
surrender any right or power conferred upon the Company by the
Mortgage; or
(c) to correct or amplify the description of any property
at any time subject to the lien of the Mortgage, or better to
assure, convey and confirm to the Bond Trustee any property
subject or required to be subjected to the lien of the Mortgage,
or to subject to the lien of the Mortgage additional property; or
(d) to convey, transfer and assign to the Bond Trustee and
to subject to the lien of the Mortgage with the same force and
effect as if included in the Mortgage, property of subsidiaries
of the Company used or to be used for one or more purposes which
if owned by the Company would constitute property used or to be
used for one or more of the primary purposes of the Company's
business, which property will for all purposes of the Mortgage be
deemed to be property of the Company, together with such other
provisions as may be appropriate to express the respective rights
of the Bond Trustee and the Company in regard thereto; or
(e) to change or eliminate any provision of the Mortgage or
to add any new provision to the Mortgage, provided that if such
change, elimination or addition adversely affects the interests
of the holders of the Mortgage Bonds of any series or tranche in
any material respect, such change, elimination or addition will
become effective with respect to such series or tranche only when
16<PAGE>
no Mortgage Bonds of such series or tranche remain outstanding
under the Mortgage; or
(f) to establish the form or terms of the Mortgage Bonds of
any series or tranche as permitted by the Mortgage; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental
thereto; or
(h) to evidence and provide for the acceptance of
appointment by a successor trustee or by a co-trustee or separate
trustee; or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a noncertificated system of
registration for all, or any series or tranche of, the Mortgage
Bonds; or
(j) to change any place where (1) the principal of and
premium, if any, and interest, if any, on the Mortgage Bonds of
any series, or any tranche thereof, will be payable, (2) any
Mortgage Bonds of any series, or any tranche thereof, may be
surrendered for registration of transfer, (3) any Mortgage Bonds
of any series, or any tranche thereof, may be surrendered for
exchange or (4) notices and demands to or upon the Company in
respect of the Mortgage Bonds of any series, or any tranche
thereof, and the Mortgage may be served; or
(k) to cure any ambiguity, to correct or supplement any
provision therein which may be defective or inconsistent with any
other provision therein, or to make any changes to the provisions
thereof or to add other provisions with respect to matters and
questions arising under the Mortgage, so long as such other
changes or additions do not adversely affect the interests of the
holders of Mortgage Bonds of any series or tranche in any
material respect; or
(l) to reflect changes in generally accepted accounting
principles; or
(m) to provide the terms and conditions of the exchange or
conversion, at the option of the holders of Mortgage Bonds of any
series, of the Mortgage Bonds of such series for or into Mortgage
Bonds of other series or stock or other securities of the Company
or any other corporation; or
17<PAGE>
(n) to change the words "Mortgage Bonds" to "First Mortgage
Bonds" in the descriptive title of all outstanding Mortgage Bonds
at any time; or
(o) to comply with the rules or regulations of any national
securities exchange on which any of the Mortgage Bonds may be
listed; or
(p) to increase the aggregate principal amount of Mortgage
Bonds which may be authenticated and delivered under the
Mortgage. (See Section 14.01.)
Without limiting the generality of the foregoing, if the Trust
Indenture Act is amended after the date of the Mortgage in such a way
as to require changes to the Mortgage or the incorporation therein of
additional provisions or so as to permit changes to, or the
elimination of, provisions which, at the date of the Mortgage or at
any time thereafter, were required by the Trust Indenture Act to be
contained in the Mortgage, the Company and the Bond Trustee may,
without the consent of the holders of any Mortgage Bonds, enter into
one or more supplemental indentures to evidence or effect such
amendment. (See Sections 14.01.)
Except as provided above, the consent of the holders of not less
than a majority in aggregate principal amount of the Mortgage Bonds of
all series then outstanding, considered as one class, is required for
the purpose of adding any provisions to, or changing in any manner, or
eliminating any of the provisions of, the Mortgage pursuant to one or
more supplemental indentures; provided, however, if less than all of
the series of Mortgage Bonds outstanding (or less than all of the
tranches of a particular series) are directly affected by a proposed
supplemental indenture, then the consent only of the holders of a
majority in aggregate principal amount of outstanding Mortgage Bonds
of all series (or tranches) so directly affected, considered as one
class, will be required. Notwithstanding the foregoing, no such
amendment or modification may, without the consent of each holder of
the outstanding Mortgage Bonds of each series or tranche directly
affected thereby, (a) change the stated maturity of the principal of,
or any installment of principal of or interest on, any Mortgage Bond,
or reduce the principal amount thereof or the rate of interest thereon
(or the amount of any installment of interest thereon) or change the
method of calculating such rate or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a
discount bond that would be due and payable upon a declaration of
acceleration of maturity or change the coin or currency (or other
property) in which any Mortgage Bond or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the stated maturity
thereof (or, in the case of redemption, on or after the redemption
date), (b) permit the creation of any lien ranking prior to the lien
of the Mortgage with respect to all or substantially all of the
Mortgaged Property or terminate the lien of the Mortgage on all or
18<PAGE>
substantially all of the Mortgaged Property, or deprive such holder of
the benefit of the security of the lien of the Mortgage, (c) reduce
the percentage in principal amount of the outstanding Mortgage Bonds
of such series or tranche, the consent of the holders of which is
required for any such supplemental indenture, or the consent of the
holder of which is required for any waiver of compliance with any
provision of the Mortgage or any default thereunder and its
consequences, or reduce the requirements for quorum or voting, or (d)
modify certain of the provisions of the Mortgage relating to
supplemental indentures, waiver of certain covenants and waivers of
past defaults. A supplemental indenture which changes or eliminates
any covenant or other provision of the Mortgage which has expressly
been included solely for the benefit of the holders of, or which is to
remain in effect only so long as there are outstanding, Mortgage Bonds
of one or more specified series, or one or more tranches thereof, or
modifies the rights of the holders of Mortgage Bonds of such series or
tranches with respect to such covenant or other provision, will be
deemed not to affect the rights under the Mortgage of the holders of
the Mortgage Bonds of any other series or tranche. (See Section
14.02.)
WAIVER
The holders of at least a majority in aggregate principal amount
of all Mortgage Bonds may waive the Company's obligations to comply
with certain covenants, including the Company's obligation to maintain
its corporate existence and properties, pay taxes and discharge liens,
maintain certain insurance and to make such recordings and filings as
are necessary to protect the security of the holders of Mortgage Bonds
and the rights of the Bond Trustee, provided that such waiver occurs
before the time such compliance is required. The holders of at least
a majority of the aggregate principal amount of outstanding Mortgage
Bonds of all affected series or tranches, considered as one class, may
waive, before the time for such compliance, compliance with the
Company's obligation to maintain an office or agency where the
Mortgage Bonds of such series or tranches may be surrendered for
payment, registration, transfer or exchange, and compliance with any
other covenant specified in a supplemental indenture respecting such
series or tranches. (See Section 6.09.)
EVENTS OF DEFAULT
Each of the following events constitutes an "Event of Default"
under the Mortgage:
(1) failure to pay interest on any Mortgage Bond within 60
days after the same becomes due;
(2) failure to pay principal of or premium, if any, on any
Mortgage Bond within 15 days after its maturity;
19<PAGE>
(3) failure to perform or breach of any covenant or
warranty of the Company in the Mortgage (other than a covenant to
pay interest, principal or premium with respect to any Mortgage
Bond) for a period of 60 days after there has been given to the
Company by the Bond Trustee, or to the Company and the Bond
Trustee by the holders of at least 50% in principal amount of
outstanding Mortgage Bonds, a written notice specifying such
default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default," unless the Bond
Trustee, or the Bond Trustee and the holders of a principal
amount of Mortgage Bonds not less than the principal amount of
Mortgage Bonds the holders of which gave such notice, as the case
may be, agree in writing to an extension of such period prior to
its expiration; provided, however, that the Bond Trustee, or the
Bond Trustee and such holders, as the case may be, will be deemed
to have agreed to an extension of such period if corrective
action has been initiated by the Company within such period and
is being diligently pursued; or
(4) Certain events relating to reorganization, bankruptcy
and insolvency of the Company and appointment of a receiver or
trustee for its property. (See Section 10.01.)
REMEDIES
If an Event of Default occurs and is continuing, then the Bond
Trustee or the holders of not less than a majority in principal amount
of Mortgage Bonds then outstanding may declare the principal amount
(or if the Mortgage Bonds are discount bonds, such portion of the
principal amount as may be provided for such discount bonds pursuant
to the terms of the Mortgage) of all of the Mortgage Bonds together
with premium, if any, and interest accrued, if any, thereon to be
immediately due and payable. At any such time after such declaration
of the maturity of the Mortgage Bonds then outstanding, but before the
sale of any of the Mortgaged Property and before a judgment or decree
for payment of money shall have been obtained by the Bond Trustee as
provided in the Mortgage, the Event or Events of Default giving rise
to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences
will, without further act, be deemed to have been rescinded and
annulled, if:
(a) the Company has paid or deposited with the Bond Trustee
a sum sufficient to pay:
(1) all overdue interest, if any, on all Mortgage
Bonds then outstanding;
(2) the principal of and premium, if any, on any
Mortgage Bonds then outstanding which have become due
otherwise than by such declaration of acceleration and
20<PAGE>
interest thereon at the rate or rates prescribed therefor in
such Mortgage Bonds; and
(3) all amounts due to the Bond Trustee as
compensation and reimbursement as provided in the Mortgage;
and
(b) any other Event or Events of Default other than the
non-payment of the principal of Mortgage Bonds which shall become
due solely by such declaration of acceleration shall have been
cured or waived as provided in the Mortgage. (See Sections 10.02
and 10.17.)
The Mortgage provides that, under certain circumstances and to
the extent permitted by law, if an Event of Default occurs and is
continuing, the Bond Trustee has the power to take possession of, and
to hold, operate and manage, the Mortgaged Property or, with or
without entry, sell the Mortgaged Property. If the Mortgaged Property
is sold, whether by the Trustee or pursuant to judicial proceedings,
the principal of the outstanding Mortgage Bonds, if not previously
due, will become immediately due, together with premium, if any, and
any accrued interest. (See Sections 10.03, 10.04 and 10.05.)
If an Event of Default occurs and is continuing, the holders of a
majority in principal amount of the Mortgage Bonds then outstanding
will have the right to direct the time, method and place of conducting
any proceedings for any remedy available to the Bond Trustee or
exercising any trust or power conferred on the Bond Trustee, provided
that (a) such direction does not conflict with any rule of law or with
the Mortgage and could not involve the Bond Trustee in personal
liability in circumstances where indemnity would not, in the Bond
Trustee's sole discretion, be adequate, (b) such direction is not
unduly prejudicial to the rights of the nonassenting holders, and (c)
the Bond Trustee may take any other action deemed proper by the Bond
Trustee which is not inconsistent with such discretion. (See Section
10.16.)
The Mortgage provides that no holder of any Mortgage Bond will
have any right to institute any proceeding, judicial or otherwise,
with respect the Mortgage, or for the appointment of a receiver or
trustee, or for any other remedy thereunder, unless (a) such holder
has previously given to the Bond Trustee written notice of a
continuing Event of Default; (b) the holders of not less than a
majority in aggregate principal amount of the Mortgage Bonds then
outstanding have made written request to the Bond Trustee to institute
proceedings in respect of such Event of Default and have offered the
Bond Trustee reasonable indemnity against cost and liabilities
incurred in complying with such request; and (c) for 60 days after
receipt of such notice, the Bond Trustee has failed to institute any
such proceeding and no direction inconsistent with such request has
been given to the Trustee during such 60-day period by the holders of
a majority in aggregate principal amount of Mortgage Bonds then
21<PAGE>
outstanding. Furthermore, no holder will be entitled to institute any
such action if and to the extent that such action would disturb or
prejudice the rights of other holders. (See Section 10.11.)
Notwithstanding that the right of a holder to institute a proceeding
with respect to the Mortgage is subject to certain conditions
precedent, each holder of a Mortgage Bond has the right, which is
absolute and unconditional, to receive payment of the principal of and
premium, if any, and interest, if any, on such Mortgage Bond when due
and to institute suit for the enforcement of any such payment, and
such rights may not be impaired without the consent of such holder.
(See Section 10.12.) The Mortgage provides that the Bond Trustee will
give the holders notice of any default under the Mortgage to the
extent required by the Trust Indenture Act, unless such default shall
have been cured or waived, except that no such notice to holders of a
default of the character described in paragraph (3) under "Event of
Default" may be given until at least 45 days after the occurrence
thereof. (See Section 11.02.) The Trust Indenture Act currently
permits the Bond Trustee to withhold notice of default (except for
certain payment defaults) if the Bond Trustee in good faith determines
the withholding of such notice to be in the interests of the holders.
As a condition precedent to certain actions by the Bond Trustee
in the enforcement of the lien of the Mortgage and institution of
action on the Mortgage Bonds, the Bond Trustee may require adequate
indemnity against costs, expense and liabilities to be incurred in
connection therewith. (See Sections 10.11 and 11.01.)
DEFEASANCE
Any Mortgage Bond or Bonds, or any portion of the principal
amount thereof, will be deemed to have been paid for purposes of the
Mortgage, and the entire indebtedness of the Company in respect
thereof will be deemed to have been satisfied and discharged, if there
has been irrevocably deposited with the Bond Trustee, in trust: (a)
money in the amount which will be sufficient, or (b) Eligible
Obligations (as described below), which do not contain provisions
permitting the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on which when
due, without any regard to reinvestment thereof, will provide monies
which will be sufficient, or (c) a combination of (a) and (b) which
will be sufficient, to pay when due the principal of and premium, if
any, and interest, if any, due and to become due on such Mortgage Bond
or Bonds or portions thereof. (See Section 9.01.) For this purpose,
Eligible Obligations include direct obligations of, or obligations
unconditionally guaranteed by, the United States of America, entitled
to the benefit of the full faith and credit thereof, and certificates,
depositary receipts or other instruments which evidence a direct
ownership interest in such obligations or in any specific interest or
principal payments due in respect thereof.
22<PAGE>
RESIGNATION OF THE BOND TRUSTEE
The Bond Trustee may resign at any time by giving written notice
thereof to the Company or may be removed at any time by the holders of
a majority in principal amount of Mortgage Bonds then outstanding
delivered to the Trustee and the Company. No resignation or removal
of the Bond Trustee and no appointment of a successor trustee will
become effective until the acceptance of appointment by a successor
trustee in accordance with the requirements of the Mortgage. In
addition, so long as no Event of Default or event which, after notice
of lapse of time, or both, would become an Event of Default has
occurred and is continuing, under certain circumstances, if the
Company has delivered to the Bond Trustee a resolution of its Board of
Directors appointing a successor trustee and such successor has
accepted such appointment in accordance with the terms of the
Mortgage, the Bond Trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in
accordance with the Mortgage. (See Section 11.10.)
GOVERNING LAW
The Mortgage is, and the Offered Mortgage Bonds will be, governed
by the internal laws of the State of South Dakota.
CONCERNING THE BOND TRUSTEE
The Chase Manhattan Bank, the Bond Trustee under the Mortgage,
has been a regular depositary of funds of the Company. There are
instances under the Trust Indenture Act which would require the
resignation of the Bond Trustee, such as an affiliate of the Bond
Trustee acting as underwriter with respect to any of the Mortgage
Bonds.
REGISTRATION AND TRANSFER
The transfer of the Mortgage Bonds may be registered, and
Mortgage Bonds may be exchanged for other Mortgage Bonds of the same
series and tranche, of authorized denominations and of like tenor and
aggregate principal amount, at the office of The Chase Manhattan Bank,
as Bond Registrar for the Mortgage Bonds, in Brooklyn, New York. The
Company may change the place for registration of transfer of the
Mortgage Bonds, may appoint one or more additional Bond Registrars
(including the Company) and may remove any Bond Registrar, all at its
discretion. (See Section 6.02.) The applicable Prospectus Supplement
will identify any new place for registration of transfer and
additional Bond Registrar appointed, and will disclose the removal of
any Bond Registrar effected, prior to the date of such Prospectus
Supplement. Except as otherwise provided in the applicable Prospectus
Supplement, no service charge will be made for any transfer or
exchange of the Mortgage Bonds, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that
23<PAGE>
may be imposed in connection with any registration of transfer or
exchange of the Mortgage Bonds. The Company will not be required to
issue, and no Bond Registrar will be required to register, the
transfer of or to exchange (a) Mortgage Bonds of any series (including
the Mortgage Bonds) during a period of 15 days prior to giving any
notice of redemption, or (b) any Mortgage Bond selected for redemption
in whole or in part, except the unredeemed portion of any Mortgage
Bond being redeemed in part. (See Section 3.05.)
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities may be issued, in one or more series,
from time to time under an Indenture between the Company and The Chase
Manhattan Bank, as trustee. The Subordinated Debt Securities may be
issued, in one or more series, from time to time under a Subordinated
Debt Securities Indenture dated as of August 1, 1995 (the
"Subordinated Indenture"), between the Company and The Chase Manhattan
Bank (as successor to The Chase Manhattan Bank, N.A.), as trustee.
The Chase Manhattan Bank, as trustee under the indentures (the
"Indenture Trustee"), will act as indenture trustee for the purposes
of the Trust Indenture Act. The form of the Indenture relating to the
Senior Debt Securities and the Subordinated Indenture relating to the
Subordinated Debt Securities (each, an "Indenture") are filed as
exhibits to the Registration Statement of which this Prospectus forms
a part.
The following summaries of certain provisions of the Indentures
do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, the provisions of the Indentures.
Capitalized terms used under this heading which are not otherwise
defined in this Prospectus will have the meanings given them in the
applicable Indenture. References to article and section numbers in
this description of the Debt Securities unless otherwise indicated are
references to article and section numbers of each Indenture.
GENERAL
The Indentures do not limit the amount of Senior Debt Securities
or Subordinated Debt Securities that may be issued thereunder. The
Indentures provide that Senior Debt Securities or Subordinated Debt
Securities, as the case may be, may be issued from time to time in one
or more series. As of June 30, 1998, no Senior Debt Securities were
outstanding under the Indenture relating to the Senior Debt
Securities, and $32.5 million principal amount of Subordinated Debt
Securities were outstanding under the Subordinated Indenture. The
Debt Securities will be direct, unsecured obligations of the Company.
The Senior Debt Securities will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company, and each
series of Subordinated Debt Securities will be subordinate and junior
in right of payment to other indebtedness of the Company to the extent
set forth in the resolutions of the Company's Board of Directors or a
special committee thereof (each, a "Board Resolution") establishing
such series of Subordinated Debt Securities.
24<PAGE>
The Prospectus Supplement relating to the series of Debt
Securities offered thereby (the "Offered Debt Securities") will
describe the following terms of the Offered Debt Securities: (i) the
title of the Offered Debt Securities; (ii) any limit on the aggregate
principal amount of the Offered Debt Securities; (iii) the percentage
of the principal amount at which the Offered Debt Securities will be
issued and, if other than the principal amount thereof, the portion of
the principal amount thereof payable upon acceleration of the maturity
thereof, or the method by which such portion will be determined; (iv)
the date or dates on which the principal of the Offered Debt
Securities will be payable; (v) the rights, if any, to defer payments
of interest on the Offered Debt Securities by extending the interest
payment period, and the duration of such extensions; (vi) in the case
of Subordinated Debt Securities, the subordination terms of the
Subordinated Debt Securities of such series; (vii) the rate or rates
at which the Offered Debt Securities will bear interest, if any, or
the method by which such rate or rates will be determined, and the
date or dates from which such interest will accrue, or the method by
which such date or dates will be determined; (viii) the dates on which
such interest will be payable and the regular record dates for any
interest payment dates and the basis on which interest will be
calculated; (ix) the dates, if any, on which, and the price or prices
at which the Offered Debt Securities may, pursuant to any mandatory or
optional sinking fund provisions, be redeemed by the Company and other
detailed terms and provisions of such sinking funds; (x) the date, if
any, after which, and the price or prices at which, the Offered Debt
Securities may, pursuant to any optional redemption provisions, be
redeemed at the option of the Company or of the holder thereof, and
other detailed terms and provisions of such optional redemption; (xi)
the denominations in which the Offered Debt Securities will be
issuable and any provision for the Offered Debt Securities to be
denominated, and payments thereon to be made, in currencies other than
the United States dollar or in units based on or relating to such
other currencies; (xii) any deletions from, modifications of or
additions to the events of default or covenants of the Company with
respect to the Offered Debt Securities, whether or not such events of
default or covenants are consistent with the events of default or
covenants set forth herein; and (xiii) any other terms of the Offered
Debt Securities.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Offered Debt Securities will be issued in United
States dollars in fully registered form, without coupons, in
denominations of $25 or any integral multiple thereof. No service
charge will be made for any transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection
therewith.
25<PAGE>
Unless otherwise indicated in the applicable Prospectus
Supplement, the principal of, and any premium or interest on, the
Offered Debt Securities will be payable, and the Offered Debt
Securities will be exchangeable and transfers thereof will be
registrable, at the office of the Indenture Trustee in New York City;
provided that, at the option of the Company, payment of interest may
be made by check mailed to the address of the person entitled thereto
as it appears in the security register.
Debt Securities may be issued as discount securities, which may
be sold at a discount below their principal amount. These Debt
Securities, as well as other Debt Securities that are not issued at a
discount below their principal amount, may, for United States Federal
income tax purposes, be deemed to have been issued with "original
issue discount" because of, among other things, certain interest
payment characteristics. Special United States Federal income tax
considerations applicable to Offered Debt Securities issued with
original issue discount, including discount securities, will be
described in more detail in the applicable Prospectus Supplement. In
addition, special United States Federal income tax considerations or
other restrictions or terms applicable to any Offered Debt Securities
which are issuable in bearer form, offered exclusively to United
States aliens, denominated in a currency other than United States
dollars or having certain other characteristics will be set forth in
the Prospectus Supplement relating thereto.
The Indentures do not contain any provisions that may afford the
holders of Debt Securities protection in the event of a highly
leveraged transaction or other transaction involving the Company. The
Indentures also do not contain any provisions that would limit the
ability of the Company to incur indebtedness or to declare or pay
dividends on its capital stock.
SUBORDINATION
Offered Debt Securities that are Subordinated Debt Securities
will be subordinated and junior in right of payment to certain other
indebtedness of the Company to the extent set forth in the applicable
Prospectus Supplement. (See Section 301.)
CERTAIN COVENANTS
If Subordinated Debt Securities are issued to a Trust in
connection with the issuance of Trust Securities by such Trust and (i)
there shall have occurred any event that would constitute an Event of
Default under the Subordinated Indenture or (ii) the Company shall be
in default with respect to its payment of any obligations under the
related Guarantee, then (a) the Company may not declare or pay
dividends (other than stock dividends paid in the same class of stock
as that on which they are paid) on, or make a distribution with
respect to or redeem, purchase or acquire, or make a liquidation
26<PAGE>
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 such Subordinated Debt
Securities. The Company is subject to the same limitations if
Subordinated Debt Securities are issued to a Trust in connection with
the issuance of Trust Securities by such Trust, and the Company shall
have given notice of its election to defer payments of interest on
such Subordinated Debt Securities by extending the interest payment
period as provided in the Subordinated Indenture and such period, or
any extension thereof, shall be continuing. (See Section 1009 of the
Subordinated Indenture.)
If Subordinated Debt Securities are issued to a Trust in
connection with the issuance of Trust Securities by such Trust, for so
long as such Trust Securities remain outstanding, the Company will
covenant (i) to directly or indirectly maintain 100% ownership of the
Common Securities of such Trust; provided, however, that any permitted
successor of the Company under the Subordinated Indenture may succeed
to the Company's ownership of such Common Securities and (ii) to use
its reasonable efforts to cause such Trust (a) to remain a statutory
business trust, except in connection with the distribution of
Subordinated Debt Securities to the holders of Trust Securities in
liquidation of such Trust, the redemption of all of the Trust
Securities of such Trust, or certain mergers or consolidations, each
as permitted by the Trust Declaration of such Trust, and (b) to
otherwise continue to be classified as a grantor trust for United
States federal income tax purposes. (See Section 1010 of the
Subordinated Indenture.)
CONSOLIDATION, MERGER AND SALE
The Company may not merge or consolidate with or into any other
corporation, or sell or convey all or substantially all of its assets
to any person, firm or corporation unless (i) such corporation or
person is organized and validly existing under the laws of the United
States or any state thereof and expressly assumes the Company's
obligations under the Indenture, (ii) after giving effect to such
transaction, no default or Event of Default shall have occurred and be
continuing and (iii) the Company shall have delivered to the Indenture
Trustee an officer's certificate and an opinion of counsel to the
effect that such transaction complies with the Indenture. (See
Section 801.)
MODIFICATION OF INDENTURES
Without the consent of the holders of any Debt Securities, the
Company and the Indenture Trustee may modify or amend either Indenture
for any of the following purposes: (i) to evidence the succession of
another person to the Company as obligor under the Indenture; (ii) to
add to the covenants of the Company for the benefit of the holders of
27<PAGE>
all or any series of Debt Securities; (iii) to add Events of Default
for the benefit of the holders of all or any series of Debt
Securities; (iv) to change or eliminate any provisions of the
Indenture, provided that any such change or elimination will become
effective only when there are no outstanding Debt Securities of any
series created prior thereto that are entitled to the benefit of such
provision; (v) to establish the form or terms of Debt Securities of
any series; (vi) to secure the Debt Securities; (vii) to provide for
the acceptance of appointment by a successor Indenture Trustee or
facilitate the administration of the trusts under the Indenture by
more than one Indenture Trustee; and (viii) to close the Indenture
with respect to the authentication and delivery of additional series
of Debt Securities, or to cure any ambiguity, defect or inconsistency
in the Indenture, provided such action does not adversely affect the
interest of holders of Debt Securities of any series. (See Section
901.)
Except as provided above, the consent of the holders of not less
than a majority in principal amount of all outstanding Senior Debt
Securities or Subordinated Debt Securities, as the case may be, of all
series affected by a proposed modification or amendment of the
applicable Indenture, considered as one class, will be required to
modify or amend the applicable Indenture; provided that no such
modification or amendment may, without the consent of the holder of
each outstanding Debt Security of such series, among other things, (i)
change the stated maturity of the principal of (or premium, if any,
on) or any installment of principal of or interest on any Debt
Security of such series, (ii) reduce the principal amount or the rate
of interest on or any Additional Amounts payable in respect of, or any
premium payable upon the redemption of, any Debt Security of such
series or change the redemption provisions of any Debt Securities,
(iii) change any obligation of the Company to pay Additional Amounts
in respect of any Debt Security of such series, (iv) reduce the amount
of principal of a Debt Security of such series that is a discount
security and would be due and payable upon a declaration of
acceleration of the maturity thereof, (v) adversely affect any right
of repayment at the option of the holder of any Debt Security of such
series, (vi) change the place or currency of payment of principal of,
or any premium or interest on, any Debt Security of such series, (vii)
impair the right to institute suit for the enforcement of any such
payment on or after the stated maturity thereof or any redemption date
or repayment date therefor, (viii) reduce the above-stated percentage
of holders of outstanding Debt Securities of such series necessary to
modify or amend the Indenture or to consent to any waiver thereunder
or reduce the requirements for voting or quorum described below, (ix)
modify the change of control provisions, if any, or (x) modify the
foregoing requirements or reduce the percentage of outstanding Debt
Securities of such series necessary to waive any past default. (See
Section 902.)
28<PAGE>
EVENTS OF DEFAULT
Each Indenture provides, with respect to any series of Debt
Securities outstanding thereunder, that any one or more of the
following events that has occurred and is continuing constitutes an
"Event of Default": (i) default in the payment of any interest upon
any Debt Security of that series, or of any coupon appertaining
thereto, when the same becomes due and payable and continues for 30
days (10 days in the case of Subordinated Debt Securities issued to a
Trust); (ii) default in the payment of the principal of or any premium
on any Debt Security of that series when due, whether at maturity,
upon redemption, by declaration or otherwise; (iii) default in the
deposit of any sinking fund payment, when and as due by the terms of
any Debt Securities of that series; (iv) default in the performance or
breach of any covenant or agreement of the Company in the Indenture
with respect to any Debt Security of that series, continued for 60
days after written notice to the Company from the Indenture Trustee or
from the holders of at least 25% of the outstanding Debt Securities of
that series; (v) certain events in bankruptcy, insolvency or
reorganization of the Company; (vi) in the case of Subordinated Debt
Securities issued to a Trust, the voluntary or involuntary
dissolution, winding-up or termination of such Trust, except in
connection with the distribution of Subordinated Debt Securities to
the holders of Trust Securities in liquidation of such Trust, the
redemption of all of the Trust Securities of such Trust, or certain
mergers or consolidations, each as permitted by the Trust Declaration
of such Trust; and (vii) any other Event of Default provided with
respect to Debt Securities of that series. The Company is required to
file annually with the Indenture Trustee an officer's certificate as
to the Company's compliance with all conditions and covenants under
each Indenture. Each Indenture provides that the Indenture Trustee
may withhold notice to the holders of Debt Securities of any default,
except in the case of a default on the payment of the principal of (or
premium), if any, or interest on any Debt Securities or the payment of
any sinking fund installment with respect to such Debt Securities, if
it considers it in the interest of the holders of Debt Securities to
do so. (See Section 501.)
If an Event of Default under an Indenture, other than certain
events with respect to bankruptcy, insolvency and reorganization of
the Company, occurs and is continuing with respect to Debt Securities
of a particular series, the Indenture Trustee or the holders of not
less than 25% in principal amount of outstanding Debt Securities of
that series may declare the outstanding Debt Securities of that series
due and payable immediately. If an Event of Default with respect to
certain events of bankruptcy, insolvency or reorganization of the
Company with respect to Debt Securities of a particular series occurs
and is continuing, then the principal of all the outstanding Debt
Securities of that series, and accrued and unpaid interest thereon,
will automatically be due and payable without any act on the part of
the Indenture Trustee or any holder. (See Section 502.)
29<PAGE>
Subject to the provisions relating to the duties of the Indenture
Trustee, if an Event of Default with respect to Debt Securities of a
particular series occurs and is continuing, the Indenture Trustee will
be under no obligation to exercise any of its rights or powers under
the Indenture at the request or direction of any of the holders of
Debt Securities of such series, unless such holders shall have offered
to the Indenture Trustee reasonable indemnity and security against the
costs, expenses and liabilities that might be incurred by it in
compliance with such request. Subject to such provisions for the
indemnification of the Indenture Trustee, the holders of a majority in
principal amount of the outstanding Debt Securities of such series
will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee under
the applicable Indenture, or exercising any trust or power conferred
on the Indenture Trustee with respect to the Debt Securities of that
series. The Indenture Trustee may refuse to follow directions in
conflict with law or the Indenture that may involve the Indenture
Trustee in personal liability or may be unduly prejudicial to holders
not joining therein. (See Section 512.)
The holders of not less than a majority in principal amount of
the outstanding Debt Securities of any series may, on behalf of the
holders of all the Debt Securities of such series and any related
coupons, waive any past default under the applicable Indenture with
respect to such series and its consequences, except a default (i) in
the payment of the principal of (or premium, if any) or interest on
any Debt Security of such series or (ii) in respect of a covenant or
provision that cannot be modified or amended without the consent of
the holder of each outstanding Debt Security of such series affected
thereby. (See Section 513.)
DEFEASANCE
Each Indenture provides that, except as may be provided in
respect of any series of Debt Securities, the Company may elect either
to (i) defease and be discharged from any and all obligations with
respect to any series of Debt Securities (except for the obligation to
pay Additional Amounts, if any, to a holder who is not a United States
person upon the occurrence of certain events of tax, assessment or
governmental charge with respect to payments on such Debt Securities
and the obligations to register the transfer or exchange of such Debt
Securities, to replace temporary or mutilated, destroyed, lost or
stolen Debt Securities, to maintain an office or agency in respect of
such Debt Securities, and to hold moneys for payment in trust)
30<PAGE>
("defeasance") or (ii) be released from its obligations with respect
to any series of Debt Securities or, if provided in the terms of such
series of Debt Securities, its obligations with respect to any other
covenant, and any omission to comply with such obligations will not
constitute a default or an Event of Default with respect to such Debt
Securities ("covenant defeasance"), in either case, upon the
irrevocable deposit by the Company with the Indenture Trustee (or
other qualifying trustee), in trust, of an amount, in such currency in
which such Debt Securities are then specified as payable at stated
maturity, or Government Obligations (as defined below), or both,
applicable to such Debt Securities (with such applicability being
determined on the basis of the currency, currency unit or composite
currency in which such Debt Securities are then specified as payable
at stated maturity) which through the scheduled payment of principal
and interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any) and
interest, if any, on such Debt Securities, and any mandatory sinking
fund or analogous payments thereon, on the scheduled due dates
therefor. The Company will not have the right to effect defeasance
with respect to any series of Subordinated Debt Securities issued to a
Trust. (See Sections 1401, 1402 and 1403.)
The Company may effect defeasance or covenant defeasance only if,
among other things, the Company has delivered to the Indenture Trustee
an opinion of counsel to the effect that the holders of the affected
Debt Securities will not recognize income, gain or loss for United
States Federal income tax purposes as a result of such defeasance or
covenant defeasance and will be subject to United States Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance or covenant
defeasance had not occurred. (See Section 1404.)
"Government Obligations" means securities that are (i) direct
obligations of the government that issued the currency in which the
Debt Securities of a particular series are payable, or (ii)
obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the government that issued the currency
in which the Debt Securities of such series are payable, the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government,
which, in either case, are not callable or redeemable at the option of
the issuer thereof, and also includes certain depository receipts
issued by a bank or trust company as custodian with respect to any
such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for
the account of the holder of a depository receipt. (See Section 101.)
The Prospectus Supplement relating to the Offered Debt Securities
may further describe the provisions, if any, permitting such
defeasance or covenant defeasance, including any modifications to the
provisions described above, with respect to the Offered Debt
Securities of or within a particular series and any related coupons.
31<PAGE>
GOVERNING LAW
The Indentures are, and the Debt Securities will be, governed by
the internal laws of the State of New York. (See Section 112.)
Information Concerning the Indenture Trustee
The Indenture Trustee, prior to default, undertakes to perform
only such duties as are specifically set forth in the Indentures and,
after default, will exercise the same degree of care as a prudent
individual would exercise in the conduct of his or her own affairs.
Subject to such provision, the Indenture Trustee is under no
obligation to exercise any of the powers vested in it by either
Indenture at the request of any holder of Debt Securities issued
thereunder, unless offered reasonable indemnity by such holder against
the costs, expenses and liabilities that might be incurred thereby.
The Indenture Trustee is not required to expand or risk its own funds
or otherwise incur personal financial liability in the performance of
its duties if the Indenture Trustee reasonably believes that repayment
or adequate indemnity is not reasonably assured to it. (See Section
601.)
REGISTRATION AND TRANSFER
The Offered Debt Securities will be issued as registered
securities and either will be in certificated form or will be
represented by Global Securities (as defined below). Registered
Senior Debt Securities will be issuable in denominations of $1,000 and
integral multiples of $1,000, and registered Subordinated Debt
Securities will be issuable in denominations of $25 and integral
multiples of $25, or in such other denominations as may be in the
terms of the Debt Securities. (See Section 302.)
Registered Debt Securities will be exchangeable for other
registered Debt Securities of the same series and of a like aggregate
principal amount and tenor of different authorized denominations.
Registered Debt Securities may be presented for registration of
transfer (duly endorsed or accompanied by a written instrument of
transfer), at the corporate trust office of the Indenture Trustee in
New York City or at the office of any transfer agent designated by the
Company for such purpose with respect to any series of Debt Securities
and referred to in any Prospectus Supplement. No service charge will
be made for any transfer or exchange of Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith. (See
Section 305.)
In the event of any redemption of any series of Debt Securities,
the Company will not be required to: (i) issue, register the transfer
of or exchange any Debt Securities of that series during a period
beginning at the opening of business 15 days before any selection of
Debt Securities of that series to be redeemed and ending at the close
32<PAGE>
of business on the day of mailing of the relevant notice of
redemption; (ii) register the transfer of or exchange any Debt
Securities, or portion thereof, called for redemption, except the
unredeemed portion of any Debt Security being redeemed in part; or
(iii) issue, register the transfer of or exchange any Debt Securities
that have been surrendered for repayment at the option of the holder,
except the portion if any, thereof not to be so repaid. (See Section
305.)
GLOBAL SECURITIES
The Offered Debt Securities may be issued in whole or in part in
the form of one or more Global Securities (as such term is defined
below), which will be deposited with, or on behalf of, a depositary
(the "Depositary") or its nominee identified in the applicable
Prospectus Supplement. In such case, one or more Global Securities
will be issued in a denomination or aggregate denomination equal to
the portion of the aggregate principal amount of outstanding Debt
Securities of the series to be represented by such Global Security or
Global Securities. Unless and until it is exchanged in whole or in
part for Debt Securities in registered form, a Global Security may not
be registered for transfer or exchange except as (i) a whole by the
Depositary for such Global Security to a nominee of such Depositary,
by a nominee of such Depositary to such Depositary or another nominee
of such Depositary or by such Depositary, or by any nominee to a
successor Depositary or a nominee of such successor Depositary, and
(ii) in the circumstances described in the applicable Prospectus
Supplement. The term "Global Security," when used with respect to any
series of Debt Securities, means a Debt Security that is executed by
the Company and authenticated and delivered by the Indenture Trustee
to the Depositary or pursuant to the Depositary's instruction, which
will be registered in the name of the Depositary or its nominee and
which will represent, and will be denominated in an amount equal to
the aggregate principal amount of, all of the outstanding Debt
Securities of such series or any portion thereof, in either case
having the same terms, including, without limitation, the same
original issue date, date or dates on which principal is due, and
interest rate or method of determining the interest rate.
The specific terms of the depositary arrangement with respect to
any Offered Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The
Company expects that the following provisions will apply to depositary
arrangements.
Unless otherwise specified in the applicable Prospectus
Supplement, Offered Debt Securities that are to be represented by a
Global Security to be deposited with or on behalf of a Depositary will
be represented by a Global Security registered in the name of such
Depositary or its nominee. Upon the issuance of such Global Security,
and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit on its
33<PAGE>
book-entry registration and transfer system the respective principal
amounts of the Debt Securities represented by such Global Security to
the accounts of institutions that have accounts with such Depositary
or its nominee ("participants"). The accounts to be credited will be
designated by the underwriters or agents of such Debt Securities or,
if such Debt Securities are offered and sold directly by the Company,
by the Company. Ownership of beneficial interests in such Global
Security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests by
participants in such Global Security will be shown on, and the
transfer of that ownership interest will be effected only through,
records maintained by the Depositary or its nominee for such Global
Security. Ownership of beneficial interests in such Global Security
by persons that hold through participants will be shown on, and the
transfer of that ownership interest within such participant will be
effected only through, records maintained by such participant. The
laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in certificated
form. The foregoing limitations and such laws may impair the ability
to transfer beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee,
is the registered owner of such Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or
holder of the Debt Securities represented by such Global Security for
all purposes under the applicable Indenture. Unless otherwise
specified in the applicable Prospectus Supplement, owners of
beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in certificated
form and will not be considered the holders thereof for any purposes
under the applicable Indenture. Accordingly, each person owning a
beneficial interest in such Global Security must rely on the
procedures of the Depositary and, if such person is not a participant,
on the procedures of the participant through which such person owns
its interest to exercise any rights of a Holder under the Indenture.
The Company understands that under existing industry practices, if the
Company requests any action of holders, or if an owner of a beneficial
interest in such Global Security desires to give any notice or take
any action a holder is entitled to give or take under the applicable
Indenture, then the Depositary would authorize the participants to
give such notice or take such action, and participants would authorize
beneficial owners owning through such participants to give such notice
or take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
Principal of and any premium and interest on a Global Security
will be payable in the manner described in the applicable Prospectus
Supplement.
34<PAGE>
MISCELLANEOUS
The Company will have the right at all times to assign any of its
respective rights or obligations under either Indenture to a direct or
indirect wholly-owned subsidiary of the Company; provided, that, in
the event of any such assignment, the Company will remain liable for
all of its obligations. Subject to the foregoing, each Indenture will
be binding upon and inure to the benefit of the parties thereto and
their respective successors and assigns. Each Indenture provides that
it may not otherwise be assigned by the parties thereto. (See Section
803.)
DESCRIPTION OF PREFERRED STOCK AND PREFERENCE STOCK
The Company's Restated Certificate of Incorporation, as amended
(the "Charter"), authorizes three classes of capital stock: Cumulative
Preferred Stock, par value $100 per share; Preference Stock, par value
$50 per share; and Common Stock, par value $1.75 per share. The
following is a description of certain general terms and provisions of
the Preferred Stock and the Preference Stock (collectively, the
"Priority Stock"). This description does not purport to be complete
and is subject to, and qualified in its entirety by, the provisions of
the Charter and the certificate of designations relating to each
series of Priority Stock (each a "Certificate of Designations"), which
will be filed as an exhibit to or incorporated by reference in the
Registration Statement of which this Prospectus is a part at or prior
to the time of issuance of such series of Priority Stock.
GENERAL
The Charter authorizes 1,000,000 shares of Preferred Stock, par
value $100 per share, and 1,000,000 shares of Preference Stock, par
value $50 per share. The Preference Stock is junior to the Preferred
Stock, but senior to the Common Stock. As of June 30, 1998, there
were outstanding 26,000 shares of 4-1/2% Series Cumulative Preferred
Stock, 11,500 shares of 6-1/2% Series Cumulative Preferred Stock, and
no shares of Preference Stock.
The Priority Stock may be issued from time to time in one or more
series, without stockholder approval. Subject to limitations
prescribed by law and the Charter, the Board of Directors of the
Company is authorized to determine the voting power (if any),
designation, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions
thereof, for each series of Priority Stock that may be issued, and to
fix the number of shares of each such series. Thus, the Board of
Directors, without stockholder approval, could authorize the issuance
of Priority Stock with voting, conversion and other rights that could
adversely affect the voting power and other rights of holders of
35<PAGE>
Common Stock or other series of Priority Stock or that could have the
effect of delaying, deferring or preventing a change in control of the
Company. See "Description of Common Stock -- Certain Effects of
Authorized but Unissued Stock."
The Prospectus Supplement relating to the particular Priority
Stock offered thereby (the "Offered Priority Stock") will describe the
following terms of the Offered Priority Stock: (i) the designation and
stated value per share of the Offered Priority Stock and the number of
shares offered; (ii) the amount of liquidation preference per share of
the Offered Priority Stock; (iii) the initial public offering price at
which the Offered Priority Stock will be issued; (iv) the dividend
rate (or method of calculation), the dates on which dividends will be
payable and the dates from which dividends will commence to accrue, if
any; (v) any redemption or sinking fund provisions; (vi) any
conversion or exchange rights; and (vii) any additional voting,
dividend, redemption, liquidation, sinking fund and other rights,
preferences, privileges, limitations and restrictions. The Priority
Stock will be, upon issuance against full payment therefor, fully paid
and nonassessable. The holders of Priority Stock will not have any
preemptive rights. The applicable Prospectus Supplement will contain
a description of certain United States Federal income tax consequences
relating to the purchase and ownership of the Offered Priority Stock.
The Priority Stock will have the dividend, liquidation,
redemption and voting rights set forth below unless otherwise provided
in the applicable Prospectus Supplement.
RANK
With respect to dividend rights and rights upon the liquidation,
dissolution or winding up of the Company, each share of Preferred
Stock will rank on a parity with each other share of Preferred Stock,
irrespective of series, and will rank prior to the Common Stock and
the Preference Stock and any other class or series of capital stock of
the Company hereafter authorized over which the Preferred Stock has
preference or priority in the payment of dividends or in the
distribution of assets on any liquidation, dissolution or winding up
of the Company. With respect to dividend rights and rights upon the
liquidation, dissolution or winding up of the Company, each share of
Preference Stock will rank on a parity with each other share of
Preference Stock, irrespective of series, and will rank junior to the
Preferred Stock but prior to the Common Stock and any other class or
series of capital stock of the Company hereafter authorized over which
the Preference Stock has preference or priority in the payment of
dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Company.
The Priority Stock will be junior to all outstanding debt of the
Company. Each series of Priority Stock will be subject to creation of
preferred or preference stock ranking senior to, on a parity with or
36<PAGE>
junior to such Priority Stock to the extent not expressly prohibited
by the Company's Charter.
DIVIDEND RIGHTS
Holders of shares of the Offered Priority Stock will be entitled
to receive, when, as and if declared by the Board of Directors out of
funds of the Company legally available for payment, cash dividends,
payable quarterly on the first day of March, June, September and
December in each year and at such rates per share per annum as set
forth in the applicable Prospectus Supplement. Such rate may be fixed
or variable or both. Each declared dividend will be payable to
holders of record as they appear at the close of business on the stock
books of the Company on such record dates, not more than 60 calendar
days preceding the corresponding payment dates, as are determined by
the Board of Directors.
Dividends on the Priority Stock will be cumulative. No full
dividend will be declared or paid or set apart for payment on any
series of Preferred Stock or any series of Preference Stock for any
dividend period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on all
the outstanding shares of Preferred Stock or Preference Stock, as
applicable, for all dividend periods terminating on or prior to the
end of such dividend period. When dividends are not paid in full as
aforesaid on all shares of Preferred Stock or Preference Stock, as the
case may be, any dividend payments (including accruals, if any) on the
Preferred Stock or Preference Stock, as applicable, will be paid to
the holders of the shares of the Preferred Stock or Preference Stock,
as the case may be, ratably in proportion to the respective sums which
such holders would receive if all dividends thereon accrued to the
date of payment were declared and paid in full. Accruals of dividends
will not bear interest. So long as any shares of Preferred Stock or
Preference Stock are outstanding, no dividends, whether in cash or
property, will be paid or declared, nor will any distribution be made,
on any class of stock ranking subordinate to the Preferred Stock or
Preference Stock, as the case may be, nor will any shares of stock
ranking subordinate to the Preferred Stock or Preference Stock, as the
case may be, be purchased, redeemed or otherwise acquired for
consideration by the Company or any subsidiary of the Company, unless
all dividends on the Preferred Stock or Preference Stock, as
applicable, for all past quarterly dividend periods have been paid or
declared and a sum sufficient for the payment thereof set apart. The
foregoing provisions will not, however, apply to a dividend payable
solely in shares of any stock ranking subordinate to the Preferred
Stock or Preference Stock, as the case may be, or to the acquisition
of shares of any stock ranking subordinate to the Preferred Stock or
Preference Stock, as the case may be, in exchange solely for shares of
any other stock ranking subordinate to the Preferred Stock or
Preference Stock, as applicable.
37<PAGE>
LIQUIDATION RIGHTS
In the event of a liquidation, dissolution or winding up of the
Company, or any reduction in its capital resulting in any distribution
of assets to the Company's shareholders, the holders of the Offered
Priority Stock will be entitled, subject to the rights of creditors,
but before any distribution or payment to the holders of Common Stock
or any other security ranking junior to the Offered Priority Stock, to
receive an amount per share determined by the Board of Directors and
set forth in the applicable Prospectus Supplement plus accrued and
unpaid dividends to the distribution or payment date (whether or not
earned or declared). No payments will be made with respect to the
Preference Stock until the full liquidation rights of the Preferred
Stock have been satisfied. In the event that the assets available for
distribution with respect to the Preferred Stock or Preference Stock,
as the case may be, are not sufficient to satisfy the full liquidation
rights of all the outstanding Preferred Stock or Preference Stock, as
applicable, then such assets will be distributed to the holders of
such Preferred Stock or Preference Stock, as the case may be, ratably
in proportion to the full amounts to which they would otherwise be
respectively entitled. After payment of the full amount of the
liquidation preference, the holders of Priority Stock will not be
entitled to any further participation in any distribution of assets by
the Company. Neither the consolidation, merger, or reorganization,
nor the sale or transfer of all or any part of the assets, of the
Company will be deemed a liquidation, dissolution or winding up of the
Company for purposes of this provision.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the
Offered Priority Stock may be redeemed by the Company, by action of
the Board of Directors, at the redemption price set forth in the
applicable Prospectus Supplement, plus accrued but unpaid dividends.
From and after the date of redemption, all dividends on the Priority
Stock called for redemption will cease to accrue, and all rights of
the holders of such Priority Stock, other than the right to receive
the redemption price, shall terminate.
VOTING RIGHTS
At any time dividends in an amount equal to four quarterly
dividend payments on the Preferred Stock of any series, whether or not
consecutive, are unpaid in whole or in part, holders of the Preferred
Stock will have the right to a separate class vote to elect the
smallest number of directors necessary to constitute a majority of the
Company's Board of Directors at the next annual meeting of
stockholders and thereafter until such arrearages in dividends have
been declared and paid (or declared and a sum sufficient for the
payment thereof set apart in trust for the holders entitled thereto),
at which time the rights of the holders of the Preferred Stock to
elect such directors will cease and the terms of the directors elected
38<PAGE>
by the holders of the Preferred Stock will terminate. In such event,
the holders of the Common Stock, voting as a class, are entitled to
elect the remaining directors, subject to the rights of the holders of
the Preference Stock if there is a similar dividend arrearage on the
Preference Stock. While the holders of the Preferred Stock are
entitled to elect a majority of the Board of Directors, payment of
dividends on the Preferred Stock shall not be unreasonably withheld if
the financial condition of the Company permits their payment.
At any time dividends in an amount equal to four quarterly
dividend payments on the Preference Stock of any series, whether or
not consecutive, are unpaid in whole or in part, holders of the
Preference Stock will have the right to a separate class vote to elect
two members of the Board of Directors at the next annual meeting of
stockholders and thereafter until such arrearages in dividends have
been declared and paid (or declared and a sum sufficient for the
payment thereof set apart in trust for the holders entitled thereto),
at which time the rights of the holders of the Preference Stock to
elect such directors will cease and the terms of such two directors
will terminate.
Without the affirmative vote of the holders of two-thirds of the
Preferred Stock or two-thirds of the Preference Stock, as the case may
be, then outstanding (voting separately as a class, without respect to
series), the Company may not (i) adopt any proposed amendment to the
Company's Charter which authorizes any capital stock (which, in the
case of the Preference Stock, includes any increase in the number of
authorized shares of Preferred Stock), or any security or obligation
convertible into any other capital stock, ranking prior in any respect
to the Preferred Stock or the Preference Stock, as the case may be,
(ii) change, by Charter Amendment or otherwise, the terms and
provisions of the Preferred Stock or the Preference Stock, as the case
may be, so as to affect adversely the relative rights, preferences,
qualifications, limitations or restrictions of the outstanding
Preferred Stock or Preference Stock, as the case may be, or the
holders thereof, provided, that if any such amendment affects
adversely the relative rights, preferences, qualifications,
limitations or restrictions of less than all series of the Preferred
Stock or less than all series of the Preference Stock, as the case may
be, at the time outstanding, then only the affirmative vote of the
holders of at least two-thirds of the shares of each series so
affected is necessary, or (iii) with respect to the Preferred Stock,
issue any shares of Preferred Stock or shares of any stock ranking
pari passu with the Preferred Stock as to dividends or liquidation
rights, or any securities convertible into shares of Preferred Stock
or stock ranking pari passu with the Preferred Stock as to dividend or
liquidation rights (otherwise than in exchange for or for the purpose
of effecting the redemption or other retirement of not less than an
equal number of shares of Preferred Stock or shares of any stock
ranking pari passu with the Preferred Stock as to dividend or
liquidation rights), unless the Common Stock equity (as defined in the
Charter) is not less than the aggregate par value of all shares of
39<PAGE>
Preferred Stock and the aggregate par value or stated value of all
other shares of stock ranking prior to or pari passu with the
Preferred Stock as to dividends or liquidation rights, which will be
outstanding after the issue of the shares or convertible securities
proposed to be issued.
Without the affirmative vote of the holders of at least a
majority of the shares of the Preferred Stock or a majority of the
shares of the Preference Stock, as the case may be, at the time
outstanding (or, if an affirmative vote of the holders of the shares
of the Preferred Stock or the Preference Stock of each series is
required by law, without the affirmative vote of holders of at least a
majority of the shares of the Preferred Stock or the Preference Stock,
as the case may be, of each series at the time outstanding), the
Company may not merge or consolidate with or into another corporation
or sell, lease or exchange all or substantially all of the assets of
the Company.
The holders of Priority Stock are entitled to one vote per share
on each matter submitted for their vote, other than the election of
directors, which is subject to cumulative voting rights. In those
instances when the holders of Priority Stock are entitled to elect
certain directors, each holder is entitled to a number of votes equal
to the number of shares owned by such holder multiplied by the number
of directors to be elected by the holders of the Preferred Stock or
the holders of the Preference Stock, as the case may be.
None of the foregoing voting requirements will apply if at the
time provision has been made for the redemption of the outstanding
Priority Stock.
Except as described above or as required by law, the Offered
Priority Stock will not be entitled to any voting rights unless
provided for in the applicable Certificate of Designations and set
forth in the applicable Prospectus Supplement.
NO OTHER RIGHTS
The Offered Priority Stock will not have any preferences, voting
powers or relative, participating, optional or other special rights
except as set forth above or in the applicable Prospectus Supplement,
the Charter and the applicable Certificate of Designations or as
otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent and the registrar for the Offered Priority
Stock will be described in the applicable Prospectus Supplement.
40<PAGE>
DESCRIPTION OF COMMON STOCK
The following is a description of certain terms of the Common
Stock. This description does not purport to be complete and is
subject to, and qualified in its entirety by, reference to the
Charter.
General
The Company is authorized to issue up to 50,000,000 shares of
Common Stock. As of June 30, 1998, there were 17,842,524 shares of
Common Stock outstanding held by approximately 8,900 stockholders of
record. Subject to the limitations described below and the prior
rights of the Preferred Stock and Preference Stock, the Common Stock
is entitled to dividends when, as and if declared by the Board of
Directors out of funds legally available therefor. Holders of Common
Stock are entitled to one vote per share. There is no provision for
cumulative voting or preemptive rights. The holders of Preferred
Stock and the holders of Preference Stock are each entitled to elect a
certain number of directors of the Company in the event of a default
in the payment of four quarterly dividends on any series of such stock
and have voting rights with respect to amendments of the Charter
affecting certain of their rights and in the case of certain mergers,
consolidations and dispositions of substantially all the Company's
assets. See "Description of Preferred Stock and Preference Stock."
Upon any liquidation, voluntary or involuntary, of the Company,
holders of Common Stock are entitled ratably to all the assets of the
Company after payment of the Company's liabilities and satisfaction of
the liquidation preferences of the Preferred Stock and the Preference
Stock. The outstanding shares of Common Stock are, and any shares of
Common Stock offered pursuant to a Prospectus Supplement (upon
issuance against full payment therefor) will be, fully paid and
nonassessable.
The Common Stock is listed on the New York Stock Exchange. The
transfer agents and registrars for the Common Stock are Norwest Bank
Minnesota, N.A. and the Company.
LIMITATIONS ON DIVIDENDS
The Company may not declare or pay cash dividends on the Common
Stock unless full dividends on all shares of Preferred Stock and
Preference Stock then outstanding for the current and all past
quarterly dividend periods have been paid or provided for. Also,
dividends on the Common Stock may not be paid unless the Company has
complied with all sinking fund requirements for those series of
Preferred Stock and Preference Stock which have such requirements.
RIGHTS
The Company has a Stockholder Rights Plan, which it first adopted
in 1996, pursuant to which each share of Common Stock has associated
with it one Common Stock Purchase Right ("Right"). Each Right, when
exercisable, entitles the registered holder to purchase from the
41<PAGE>
Company one share of Common Stock at a price of $50.00 per share (as
adjusted for the two-for-one stock split in May 1997), subject to
further adjustments. The Rights are evidenced by the Common Stock
certificates and may not be exercised or transferred separately from
the Common Stock until ten days after a person or group acquires, or
announces a tender offer which would result in its acquiring,
beneficial ownership of securities having 15% or more of the voting
power of all outstanding voting securities of the Company.
In the event that a person or group acquires 15% or more or the
Company's voting power, or if the Company merges or engages in certain
self-dealing transactions with a 15% or more stockholder, each Right
will entitle the holder (other than the 15% or more stockholder) to
purchase a number of shares of Common Stock (or, if the Company is not
the surviving corporation, shares of common stock of the surviving
corporation), having a market value of two times the exercise price of
the Right.
The Rights do not have voting rights and are redeemable at the
option of the Company at a price of $.005 per Right at any time before
the Rights become exercisable. Unless earlier redeemed, the Rights
will expire on December 10, 2006.
RESTRICTIONS ON CHANGE OF CONTROL
The Company's Charter contains certain provisions which will make
it difficult for any party to obtain control of the Company through
transactions not approved by the Board of Directors of the Company,
including the following:
(i) The Board of Directors is divided into three classes,
only one of which stands for election each year for a three year
term of office, thereby requiring two successive annual elections
for a party or group acquiring control to replace a majority of
the incumbent directors.
(ii) Directors may be removed from office before their terms
expire only for cause.
(iii) To authorize certain "business combinations"
between the Company and any person or entity which owns 10% or
more of the outstanding Common Stock, or an affiliate of such a
person or entity, the approving vote of the holders of at least
75% of the outstanding Common Stock must be obtained, unless
certain "fair price" and other financial and procedural
conditions are satisfied, coupled with approval of the
transaction by a majority of "Continuing Directors."
(iv) Amendment of the foregoing Charter provisions must be
approved by the holders of at least 75% of the outstanding shares
of the Company's Common Stock.
42<PAGE>
In addition, the Company is subject to the "business combination"
statute of the Delaware General Corporation Law (Section 203). In
general, this statute prohibits a publicly held Delaware corporation
from engaging in a "business combination" with any "interested
stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder,
unless (i) the transaction is approved by the board of directors prior
to the date the interested stockholder obtains such status, (ii) upon
consummation of the transaction in which the interested stockholder
obtains such status, the interested stockholder beneficially owned at
least 85% of the outstanding shares of the corporation's voting stock
owned by stockholders other than (a) persons who are directors and
also officers and (b) employee stock plans in which employee
participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or
exchange offer, or (iii) the "business combination" is approved by the
board of directors and authorized at an annual or special meeting of
stockholders by the affirmative vote of at least 66 2/3% of the
outstanding voting stock which is not owned by the "interested
stockholder." "Business combination" includes mergers, asset sales
and other transactions resulting in financial benefit to the
"interested stockholder." An "interested stockholder" is a person
who, together with affiliates and associates, owns (or within three
years, did own) beneficially 15% or more of a corporation's voting
stock.
The overall effect of the above provisions may be to render more
difficult or to discourage a merger, tender offer or proxy contest,
the assumption of control of the Company by a holder of a large block
of the Company's stock or other person, or the removal of incumbent
management, even if such actions may be beneficial to the Company's
stockholders generally.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
The Company's authorized but unissued shares of Common Stock,
Preferred Stock and Preference Stock may be issued without additional
stockholder approval and may be utilized for a variety of corporate
purposes, including future offerings to raise additional capital or to
facilitate corporate acquisitions. The issuance of Preferred Stock or
Preference Stock could have the effect of delaying or preventing a
change in control of the Company. The issuance of Preferred Stock or
Preference Stock could decrease the amount of earnings and assets
available for distribution to the holders of Common Stock or could
adversely affect the rights and powers, including voting rights, of
the holders of the Common Stock. In certain circumstances, such
issuance could have the effect of decreasing the market price of the
Common Stock.
One of the effects of the existence of unissued and unreserved
Common Stock, Preferred Stock or Preference Stock may be to enable the
Board to issue shares to persons friendly to current management which
43<PAGE>
could render more difficult or discourage an attempt to obtain control
of the Company by means of a merger, tender offer, proxy contest or
otherwise, and thereby protect the continuity of management. Such
additional shares also could be used to dilute the stock ownership of
persons seeking to obtain control of the Company.
LIMITATION OF DIRECTOR LIABILITY
The Charter contains a provision that limits the liability of the
Company's directors for monetary damages for breach of fiduciary duty
as a director to the fullest extent permitted by the Delaware General
Corporation Law. Such limitation does not, however, affect the
liability of a director (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) in respect of certain unlawful dividend
payments or stock redemptions or purchases and (iv) for any
transaction from which the director derives an improper personal
benefit. The effect of this provision is to eliminate the rights of
the Company and its stockholders (through stockholders' derivative
suits on behalf of the Company) to recover monetary damages against a
director for breach of the fiduciary duty of care as a director
(including breaches resulting from negligent or grossly negligent
behavior) except in the situations described in clauses (i) through
(iv) above. This provision does not limit or eliminate the rights of
the Company or any stockholder to seek non-monetary relief such as an
injunction or rescission in the event of a breach of a director's duty
of care.
DESCRIPTION OF THE TRUSTS' PREFERRED SECURITIES
The following is a description of certain general terms and
provisions of the Preferred Securities. This description does not
purport to be complete and is subject to, and qualified in its
entirety by, the provisions of the form of Trust Declaration, which is
filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Wilmington Trust Company will act as
Property Trustee under each Trust Declaration and as an indenture
trustee for purposes of the Trust Indenture Act.
Each Trust may issue only one series of Preferred Securities.
The Prospectus Supplement relating to the particular Preferred
Securities offered thereby (the "Offered Preferred Securities") will
describe the following terms of the Offered Preferred Securities: (i)
the designation of the Offered Preferred Securities, (ii) the number
of Offered Preferred Securities, (iii) the annual distribution rate
(or method of determining such rate) for the Offered Preferred
Securities and the date or dates upon which such distributions will be
payable, (iv) whether distributions on the Offered Preferred
Securities will be cumulative, and, in the case of Preferred
Securities having cumulative distribution rights, the date or dates or
method of determining the date or dates from which distributions on
44<PAGE>
such Preferred Securities will accumulate, (v) the amount or amounts
to be paid out of the assets of the applicable Trust to the holders of
the Offered Preferred Securities upon voluntary or involuntary
dissolution, winding-up or termination of such Trust, (vi) the
obligation, if any, of the applicable Trust to purchase or redeem the
Offered Preferred Securities and the price or prices at which, the
period or periods within which and the terms and conditions upon which
the Offered Preferred Securities will be purchased or redeemed, in
whole or in part, pursuant to such obligation, (vii) the voting
rights, if any, of the Offered Preferred Securities in addition to
those required by law, including the number of votes per Preferred
Security and any requirement for the approval by the holders of
Preferred Securities, or of Preferred Securities issued by one or more
Trusts or of both, as a condition to specified action or amendments to
the Trust Declaration of the applicable Trust, and (viii) any other
relevant rights, preferences, privileges, limitations or restrictions
of the Offered Preferred Securities consistent with the applicable
Trust Declaration or with applicable law. All Offered Preferred
Securities will be guaranteed by the Company to the extent set forth
below under "Description of the Guarantees." Certain United States
Federal income tax considerations applicable to any Offered Preferred
Securities will be described in the applicable Prospectus Supplement.
In connection with the issuance of Preferred Securities, each
Trust will issue one series of Common Securities having such terms,
including distribution, redemption, voting and liquidation rights,
limitations and restrictions, as shall be set forth in the applicable
Trust Declaration. The terms of the Common Securities issued by a
Trust will be substantially identical to the terms of the Preferred
Securities issued by such Trust and the Common Securities will rank
pari passu with, and payments will be made thereon pro rata with, the
Preferred Securities except that, upon an event of default under the
applicable Trust Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the
rights of the holders of the Preferred Securities. Except in certain
limited circumstances, the Common Securities will also carry the right
to vote and to appoint, remove or replace any of the Capital Financing
Trustees of a Trust. All of the Common Securities of each Trust will
be directly or indirectly owned by the Company.
DESCRIPTION OF THE GUARANTEES
Set forth below is a description of certain terms and provisions
of the Guarantees that will be executed and delivered by the Company
for the benefit of the holders, from time to time, of Preferred
Securities. The description does not purport to be complete and is
subject to, and qualified in its entirety by, the provisions of the
form of Guarantee, which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. Wilmington Trust
Company will act as trustee under each Guarantee (the "Guarantee
Trustee") and as an indenture trustee for purposes of the Trust
45<PAGE>
Indenture Act. Each Guarantee will be held by the Guarantee Trustee
for the benefit of the holders of the Preferred Securities of the
applicable Trust.
GENERAL
Pursuant to each Guarantee, the Company will irrevocably and
unconditionally agree, to the extent set forth therein, to pay in full
to the holders of the Preferred Securities issued by a Trust, the
Guarantee Payments (as defined below), as and when due, regardless of
any defense, right of set-off or counterclaim which such Trust may
have or assert. The following payments with respect to Preferred
Securities issued by a Trust (the "Guarantee Payments"), to the extent
not paid by such Trust, will be subject to the Guarantee (without
duplication): (i) any accumulated and unpaid distributions that are
required to be paid on such Preferred Securities, to the extent the
Company has made a payment of interest or principal on the
Subordinated Debt Securities, (ii) the redemption price, including all
accumulated and unpaid distributions to the date of redemption (the
"Redemption Price"), to the extent the Company has made a payment of
interest or principal on the Subordinated Debt Securities, with
respect to any Preferred Securities called for redemption by such
Trust, and (iii) upon a voluntary or involuntary dissolution, winding-
up or termination of such Trust (other than in connection with the
distribution of Subordinated Debt Securities to the holders of
Preferred Securities or the redemption of all of the Preferred
Securities upon the maturity or redemption of the Subordinated Debt
Securities) the lesser of (a) the aggregate of the liquidation amount
and all accumulated and unpaid distributions on such Preferred
Securities to the date of payment to the extent such Trust has funds
legally available therefor and (b) the amount of assets of such Trust
remaining available for distribution to holders of such Preferred
Securities in liquidation of such Trust. The Company's obligation to
make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Company to the holders of Preferred Securities
or by causing such Trust to pay such amounts to such holders.
Each Guarantee will be a full and unconditional guarantee with
respect to the Preferred Securities issued by the applicable Trust
from the time of issuance of such Preferred Securities but will not
apply to any payment of distributions due to the extent such Trust
lacks funds legally available therefor as a result of a failure by the
Company to make payments of interest or principal on the Subordinated
Debt Securities. If the Company does not make interest payments on
the Subordinated Debt Securities purchased by a Trust, such Trust will
not pay distributions on the Preferred Securities issued by a Trust
and will not have funds legally available therefor. See "Description
of Debt Securities."
The Company and the Trusts believe that the Guarantees, taken
together with the Company's obligations under the Subordinated
Indenture and the Subordinated Debt Securities and the provisions of
46<PAGE>
the Trust Declaration, are substantially equivalent to a full and
unconditional guarantee by the Company of payments due on the
Preferred Securities.
The Company has also agreed to irrevocably and unconditionally
guarantee the obligations of the Trusts with respect to the Common
Securities (the "Common Securities Guarantee") to the same extent as
the Guarantees, except that, upon an event of default under the
Subordinated Indenture, holders of Preferred Securities under the
Guarantees will have priority over holders of Common Securities under
the Common Securities Guarantees with respect to distributions and
payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In each Guarantee, the Company will covenant that, so long as any
Preferred Securities issued by the applicable Trust remain
outstanding, if there shall have occurred any event that would
constitute an event of default under such Guarantee or the Trust
Declaration of such Trust, then (a) the Company will not declare or
pay any dividend (other than stock dividends paid in the same class of
stock as that on which they are paid) 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 Company
will not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities issued by the
Company which rank pari passu with or junior to such Subordinated Debt
Securities.
MODIFICATION OF THE GUARANTEES; ASSIGNMENT
Except with respect to any changes that do not materially
adversely affect the rights of holders of Preferred Securities (in
which case no vote will be required), each Guarantee may be amended
only with the prior approval of the holders of not less than 66 2/3%
in liquidation amount of the outstanding Preferred Securities issued
by the applicable Trust. All guarantees and agreements contained in a
Guarantee will bind the successors, assignees, receivers, trustees and
representatives of the Company and will inure to the benefit of the
holders of the Preferred Securities of the applicable Trust then
outstanding.
EVENTS OF DEFAULT
An "Event of Default" under the Guarantee will occur upon the
failure of the Company to perform any of its payments or other
obligations thereunder. The holders of a majority in liquidation
amount of the Preferred Securities of the applicable Trust have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in
respect of the Guarantee or to direct the exercise of any trust or
power conferred upon the Guarantee Trustee under the Guarantee.
47<PAGE>
If the Guarantee Trustee fails to enforce such Guarantee, any
holder of Preferred Securities of the applicable Trust may, after such
holder's written request to the Guarantee Trustee to enforce the
Guarantee, institute a legal proceeding directly against the Company
to enforce the Guarantee Trustee's rights under such Guarantee without
first instituting a legal proceeding against the relevant Trust, the
Guarantee Trustee or any other person or entity.
The Company will be required to provide annually to the Guarantee
Trustee a statement as to the performance by the Company of certain of
its obligations under each of the Guarantees and as to any default in
such performance.
The Company is required to file annually with the Guarantee
Trustee an officer's certificate as to the Company's compliance with
all conditions under each of the Guarantees.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default,
undertakes to perform only such duties as are specifically set forth
in the applicable Guarantee and, after default with respect to a
Guarantee, will exercise the same degree of care as a prudent
individual would exercise in the conduct of his or her own affairs.
Subject to such provision, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by a Guarantee
at the request of any holder of Preferred Securities unless it is
offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate as to the Preferred Securities
issued by the applicable Trust upon full payment of the Redemption
Price of all such Preferred Securities, upon distribution of the
Subordinated Debt Securities held by the Trust to the holders of the
Preferred Securities of such Trust, or upon full payment of the
amounts payable in accordance with the applicable Trust Declaration
upon liquidation of such Trust. Each Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time
any holder of Preferred Securities issued by the applicable Trust must
restore payment of any sums paid under such Preferred Securities or
such Guarantee.
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the
Company and will rank (i) subordinate and junior in right of payment
to all other liabilities of the Company, (ii) pari passu with the most
senior preferred or preference stock now or hereafter issued by the
Company and with any guarantee now or hereafter entered into by the
Company in respect of any preferred or preference stock of any
48<PAGE>
affiliate of the Company, and (iii) senior to the Company's Common
Stock. The terms of the Preferred Securities provide that each holder
of Preferred Securities issued by a Trust by acceptance thereof agrees
to the subordination provisions and other terms of the applicable
Guarantee.
Each Guarantee will constitute a guarantee of payment and not of
collection (allowing the guaranteed party to institute a legal
proceeding directly against the Company to enforce its rights under a
Guarantee without instituting a legal proceeding against any other
person or entity).
GOVERNING LAW
Each Guarantee will be governed by the internal laws of the State
of New York.
PLAN OF DISTRIBUTION
The Company, the Trusts (with respect to Preferred Securities)
and the Selling Stockholders (with respect to shares of Common Stock)
may sell Securities to one or more underwriters for public offering
and sale by them or may sell Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer
and sale of Securities will be named in the applicable Prospectus
Supplement. Any sale of Securities by the Company to one or more
underwriters may include stand-by call arrangements or other
arrangements whereby an underwriter purchases Securities directly or
indirectly from the Company in connection with a redemption of
securities convertible into Securities.
The distribution of Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be
changed, or from time to time at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at
negotiated prices. Each Prospectus Supplement will describe the method
of distribution of the offered Securities.
In connection with the sale of Securities, underwriters or agents
acting on the Company's behalf may be deemed to have received
compensation from the Company in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of
Securities for whom they may act as agent. Underwriters may sell
Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they
may act as agent.
Any underwriting compensation paid to underwriters or agents in
connection with the offering of Securities, and any discounts,
concessions or commissions allowed by underwriters to participating
49<PAGE>
dealers, will be set forth in the applicable Prospectus Supplement.
Underwriters, dealers and agents participating in the distribution of
Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale
of Securities may be deemed to be underwriting discounts and
commissions under the Securities. Underwriters, dealers and agents may
be entitled, under agreements entered into with the Company and the
Selling Stockholders, to indemnification against and contribution
toward certain civil liabilities, including liabilities under the
Securities Act.
If so indicated in the applicable Prospectus Supplement, the
Company will authorize underwriters acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the
Company pursuant to delayed delivery contracts ("Contracts") providing
for payment and delivery on the date or dates stated in such
Prospectus Supplement. Each Contract will be for an amount not less
than, and the amount of Securities sold pursuant to Contracts will be
not less nor more than, the respective amounts stated in such
Prospectus Supplement. Institutions with which Contracts, when
authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investments companies, educational
and charitable institutions and other institutions, but will in all
cases be subject to the approval of the Company. The obligations of
any purchaser under any Contract will not be subject to any conditions
except that (i) the purchase by an institution of the Securities
covered by its Contract shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to
which such institution is subject, and (ii) if the Securities are also
being sold to underwriters, the Company shall have sold to such
underwriters the total principal amount of the Securities less the
principal amount thereof covered by the Contracts. The underwriters
and such other persons will not have any responsibility in respect of
the validity or performance of the Contracts.
SELLING STOCKHOLDERS
Up to 1,279,476 shares of Common Stock may be offered by or for
the accounts of the Selling Stockholders listed in the table below.
The Selling Stockholders were stockholders of Empire Energy
Corporation ("Empire Energy"), which merged with a wholly owned
subsidiary of the Company in 1996. In connection with that merger,
the Company and the Selling Stockholders entered into a Warrant
Issuance and Exchange Agreement, pursuant to which the Company issued
warrants to purchase Common Stock ("Warrants") to the former
stockholders of Empire Energy, including the Selling Stockholders.
The Warrants are exercisable for Common Stock at an exercise price of
$18.225 per share. Except as a result of their ownership of the
Warrants, their stock ownership of Empire Energy prior to its
acquisition by the Company and their positions with Empire Energy,
none of the Selling Stockholders or any of their affiliates, other
than Kermit Clay, Charles Jones and Link Young, has had within the
50<PAGE>
past three years any material relationship with the Company or any of
its affiliates. Messrs. Clay, Jones and Young are currently employees
of Cornerstone Propane, L.P., an affiliate of the Company.
The Selling Stockholders beneficially own an aggregate of
1,279,476 shares of Common Stock, all of which represent shares that
may be acquired upon exercise of Warrants held by such persons.
The following table sets forth certain information as of June 15,
1998 with respect to the Common Stock beneficially owned by each
Selling Stockholder:
Shares
Beneficially
Name Owned(1)
---- ------------
Bill Byrne 39,730
Kermit Clay 19,866
David Dean 27,840
Luther Gill 72,936
Charles Jones 50,896
Earl L. Noe 79,896
Stephen R. Plaster Trust 593,764
Floyd J. Waterman 71,776
Larry A. Weis 73,516
Robert W. Wooldridge 225,476
Link Young 23,780
(1) Issuable upon exercise of Warrants held by such person.
EXPERTS AND LEGAL OPINIONS
The financial statements and schedules included in Form 10-K
and incorporated by reference in this Registration Statement have
been audited by Arthur Andersen LLP, independent public accountants,
as indicated in their reports with respect thereto, and are included
herein in reliance upon the authority of said firm as experts in
giving said reports.
The legality of the Securities of the Company offered hereby will
be passed upon for the Company by Schiff Hardin & Waite, Chicago,
Illinois. Certain matters of Delaware law relating to the validity of
the Preferred Securities, the enforceability of the Trust Declarations
and the creation of the Trusts will be passed upon by Richards, Layton
& Finger, PA, Wilmington, Delaware.
51<PAGE>
<TABLE>
<CAPTION>
<S> <C>
No person has been authorized to give any information $500,000,000
or to make any representation not contained in this
Prospectus in connection with the offer made by this NORTHWESTERN CORPORATION
Prospectus and, if given or made, such information or MORTGAGE BONDS
representation must not be relied upon as having been SENIOR DEBT SECURITIES
authorized by the Company. This Prospectus is not an SUBORDINATED DEBT SECURITIES
offer to sell or a solicitation of an offer to buy any CUMULATIVE PREFERRED STOCK
of the securities offered hereby in any jurisdiction PREFERENCE STOCK
to any person to whom it is unlawful to make such COMMON STOCK
offer in such jurisdiction. Neither the delivery of
this Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that NORTHWESTERN CAPITAL FINANCING I
there has been no change in the affairs of the Company NORTHWESTERN CAPITAL FINANCING II
since the date hereof. NORTHWESTERN CAPITAL FINANCING III
PREFERRED SECURITIES
CONTENTS Guaranteed to the extent set forth herein by
NORTHWESTERN CORPORATION
Page
----
Available Information . . . . . . . . . . . . . . . 4
Documents Incorporated by Reference . . . . . . . . 5
Northwestern . . . . . . . . . . . . . . . . . . . 6
The Trusts . . . . . . . . . . . . . . . . . . . . 6
Use of Proceeds . . . . . . . . . . . . . . . . . 7
Ratio of Earnings to Fixed Charges and PROSPECTUS
Earnings to Combined Fixed Charges
and Preferred Dividends . . . . . . . . . . . . 8
Price Range of Common Stock and Dividends . . . . . 8
Description of Mortgage Bonds . . . . . . . . . . 9
Description of Debt Securities . . . . . . . . . . 24
Description of Preferred Stock and
Preference Stock . . . . . . . . . . . . . . . . 35
Description of Common Stock . . . . . . . . . . . 41
Description of the Trusts' Preferred Securities . . 44
Description of the Guarantees . . . . . . . . . . . 45
Plan of Distribution . . . . . . . . . . . . . . . 49 _______, 1998
Selling Stockholders . . . . . . . . . . . . . . . 50
Experts and Legal Opinions . . . . . . . . . . . . 51<PAGE>
</TABLE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of
the securities covered hereby are estimated to be as follows:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission filing fee . . . . . . . . . . . . . . . . . . . . . . . . . $ 156,742
----------
Printing and engraving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 50,000
----------
Transfer Agent and Registrar fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,000
----------
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 50,000
----------
Accounting fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,000
----------
Trustee's fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 14,000
----------
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,258
----------
Total $ 275,000
----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of Northwestern Corporation (the "Company") provide
for indemnification by the Company of each of its directors and
officers to the fullest extent permitted by Delaware law for liability
(including liability arising under the Securities Act of 1933) of such
director or officer arising by reason of his or her status as a
director or officer of the Company, provided that he or she met the
standards established in the By-Laws, which include requirements that
he or she acted in good faith and in a manner he or she reasonably
believed to be in the Company's best interest. The Company will also
advance expenses prior to final disposition of an action, suit or
proceeding upon receipt of an undertaking by the director or officer
to repay such amount if the director or officer is not entitled to
indemnification. All rights to indemnification and advancement of
expenses are deemed to be a contract between the Company and its
directors and officers. The determination that a director or officer
has met the standards established in the By-Laws may be made by a
majority vote of a quorum consisting of disinterested directors, an
opinion of counsel (if no such quorum is available or even if
attainable, a quorum of disinterested directors so directs), a
majority vote of stockholders, or a court (which may also overturn any
of the preceding determinations).
The directors and officers of the Company are covered by
insurance policies indemnifying against certain liabilities, including
II-1<PAGE>
certain liabilities arising under the Securities Act of 1933, which
might be incurred by them in such capacities and against which they
cannot be indemnified by the Company.
Under each Trust Declaration the Company will agree to indemnify
each of the trustees or predecessor trustees of the registrant trusts
(each a "Trust") with respect to the applicable Trust Declarations and
to hold each such trustee harmless against any loss, damage, claim,
liability or expense, incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the Trust Declarations, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties under the Trust Declarations.
ITEM 16. EXHIBITS.
Reference is made to information contained in the Exhibit Index
filed as a part of this Registration Statement.
ITEM 17. UNDERTAKINGS.
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
II-2<PAGE>
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
Each of the undersigned registrants hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of such registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the foregoing
provisions, or otherwise, the registrants have been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrants will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-3<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this registration statement to be signed on its behalf of the
undersigned, thereunto duly authorized, in the City of Huron, State of
South Dakota, on the 30th day of June, 1998.
NORTHWESTERN CORPORATION
(Registrant)
By /s/ Merle D. Lewis
------------------------------------
Merle D. Lewis
Chairman and Chief Executive Officer
________________________
POWER OF ATTORNEY
Each director and officer of the Company whose signature appears
below hereby authorizes the agent for service named in the
registration statement to execute in the name of such person, and to
file, any amendment to the registration statement necessary or
advisable to enable the registrant to comply with the Securities Act
of 1933, and any rules, regulations and requirements of the Securities
and Exchange Commission in respect thereof, which amendment may make
such other changes in the registration statement as the agent for
service deems appropriate.
________________________
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Date Signature and Title
<S> <C>
June 30, 1998 /s/ M. D. Lewis
---------------------- -----------------------------------
M. D. Lewis, Chairman and Chief Executive Officer
June 30, 1998 /s/ R. R. Hylland
---------------------- -----------------------------------
R. R. Hylland, President, Chief Operating Officer
and Director
June 30, 1998 /s/ D. K. Newell
---------------------- ------------------------------------
D. K. Newell, Vice President-Finance
and Chief Financial Officer
(Principal Financial Officer)
II-4<PAGE>
June 30, 1998 /s/ David A. Monaghan
---------------------- -----------------------------------
David A. Monaghan, Controller
and Treasurer
(Principal Accounting Officer)
June 30, 1998 /s/ Randy G. Darcy
---------------------- -----------------------------------
Randy G. Darcy, Director
June 30, 1998 /s/ Gary G. Drook
---------------------- -----------------------------------
Gary G. Drook, Director
June 30, 1998 /s/ Jerry W. Johnson
---------------------- -----------------------------------
Jerry W. Johnson, Director
June 30, 1998 /s/ Aelred J. Kurtenbach
---------------------- -----------------------------------
Aelred J. Kurtenbach, Director
June 30, 1998 /s/ Larry F. Ness
---------------------- -----------------------------------
Larry F. Ness, Director
June 30, 1998 /s/ Gary Olson
---------------------- -----------------------------------
Gary Olson, Director
June 30, 1998 /s/ Raymond M. Schutz
---------------------- -----------------------------------
Raymond M. Schutz, Director
June 30, 1998 /s/ Bruce I. Smith
---------------------- -----------------------------------
Bruce I. Smith, Director
</TABLE>
II-5<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this registration statement to be signed on its behalf of the
undersigned, thereunto duly authorized, in the City of Huron, State of
South Dakota, on the 1st day of July, 1998.
NORTHWESTERN CAPITAL FINANCING I
(Registrant)
By: NORTHWESTERN CORPORATION, Sponsor
By: /s/ Merle D. Lewis
--------------------------------
Merle D. Lewis
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this registration statement to be signed on its behalf of the
undersigned, thereunto duly authorized, in the City of Huron, State of
South Dakota, on the 1st day of July, 1998.
NORTHWESTERN CAPITAL FINANCING II
(Registrant)
By: NORTHWESTERN CORPORATION, Sponsor
By: /s/ Merle D. Lewis
--------------------------------
Merle D. Lewis
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this registration statement to be signed on its behalf of the
undersigned, thereunto duly authorized, in the City of Huron, State of
South Dakota, on the 1st day of July, 1998.
NORTHWESTERN CAPITAL FINANCING III
(Registrant)
By: NORTHWESTERN CORPORATION, Sponsor
By: /s/ Merle D. Lewis
--------------------------------
Merle D. Lewis
Chairman and Chief Executive
Officer
II-6<PAGE>
EXHIBIT INDEX
The following documents are filed as part of the Registration
Statement or are incorporated by reference.
4(a)(1) General Mortgage Indenture and Deed of Trust dated as of
August 1, 1993, from the Company to The Chase Manhattan Bank
(National Association), as Trustee, is incorporated by
reference to Exhibit 4(a) of Form 8-K, dated August 16,
1993, Commission File No. 0-692.
4(a)(2) Supplemental Indenture dated as of August 15, 1993, to the
General Mortgage Indenture and Deed of Trust dated as of
August 1, 1993, executed by the Company to The Chase
Manhattan Bank (National Association), as Trustee, is
incorporated by reference to Exhibit 4(b) of Form 8-K, dated
August 16, 1993, Commission File No. 0-692.
4(a)(3) Supplemental Indenture dated August 1, 1995, to the General
Mortgage Indenture and Deed of Trust dated as of August 1,
1993, executed by the Company to The Chase Manhattan Bank
(National Association), as Trustee, is incorporated by
reference to Exhibit 4(b) of Form 8-K, dated August 30,
1995, Commission File No. 0-692.
4(a)(4) Supplemental Indentures dated September 1, 1995, to the
General Mortgage Indenture and Deed of Trust dated as of
August 1, 1993, executed by the Company to The Chase
Manhattan Bank (National Association), as Trustee, are
incorporated by reference to Exhibits 4(a)(5), 4(a)(6) and
4(a)(7) of Form 10-K, dated December 31, 1995, Commission
File No. 0-692.
4(b)(1) Copy of Sale Agreement between Company and Mercer County,
North Dakota, dated June 1, 1993, related to issuance of
Pollution Control Refunding Revenue Bonds (Northwestern
Public Service Company Project) Series 1993, is incorporated
by reference to Exhibit 4(b)(1) of Registrant's report on
Form 10-Q for the quarter ending June 30, 1993, Commission
File No. 0-692.
4(b)(2) Copy of Loan Agreement between Company and Grant County,
South Dakota, dated June 1, 1993, related to issuance of
Pollution Control Refunding Revenue Bonds (Northwestern
Public Service Company Project) Series 1993A, is
incorporated by reference to Exhibit 4(b)(2) of Registrant's
report on Form 10-Q for the quarter ending June 30, 1993,
Commission File No. 0-692.
4(b)(3) Copy of Loan Agreement between Company and Grant County,
South Dakota, dated June 1, 1993, related to issuance of
II-7<PAGE>
Pollution Control Refunding Revenue Bonds (Northwestern
Public Service Company Project) Series 1993B, is
incorporated by reference to Exhibit 4(b)(3) of Registrant's
report on Form 10-Q for the quarter ending June 30, 1993,
Commission File No. 0-692.
4(b)(4) Copy of Loan Agreement between Company and City of Salix,
Iowa, dated June 1, 1993, related to issuance of Pollution
Control Refunding Revenue Bonds (Northwestern Public Service
Company Project) Series 1993, is incorporated by reference
to Exhibit 4(b)(4) of Registrant's report on Form 10-Q for
the quarter ending June 30, 1993, Commission File No. 0-692.
4(b)(5) Preferred Securities Guarantee Agreement, dated August 3,
1995, between the Company and Wilmington Trust Company is
incorporated by reference to Exhibit 1(d) of Form 8-K, dated
August 30, 1995, Commission File No. 0-692.
4(b)(6) Declaration of Trust of NWPS Capital Financing I is
incorporated by reference to Exhibit 4(d) of Form 8-K, dated
August 30, 1995, Commission File No. 0-692.
4(b)(7) Amended and Restated Declaration of Trust of NWPS Capital
Financing I is incorporated by reference to Exhibit 4(e) of
Form 8-K, dated August 30, 1995, Commission File No. 0-692.
4(b)(8) Subordinated Debt Securities Indenture, dated August 1,
1995, between the Company and The Chase Manhattan Bank
(National Association), as Trustee, is incorporated by
reference to Exhibit 4(f) of Form 8-K, dated August 30,
1995, Commission File No. 0-692.
4(b)(9) First Supplemental Indenture, dated August 1, 1995, to the
Subordinated Debt Securities Indenture is incorporated by
reference to Exhibit 4(g) of Form 8-K, dated August 30,
1995, Commission File No. 0-692.
4(b)(10)* Form of Indenture between the Company and The Chase
Manhattan Bank, as Trustee.
4(b)(11)* Certificate of Trust of Northwestern Capital Financing I.
4(b)(12)* Restated Certificate of Trust of NWPS Capital Financing II.
4(b)(13)* Restated Certificate of Trust of NWPS Capital Financing III.
4(b)(14)* Declaration of Trust of Northwestern Capital Financing I.
4(b)(15)* First Amendment to the Declaration of Trust of NWPS Capital
Financing II.
4(b)(16)* First Amendment to the Declaration of Trust of NWPS Capital
Financing III.
II-8<PAGE>
4(b)(17)* Form of Amended and Restated Declaration of Trust of
Northwestern Capital Financing I, II and III.
4(b)(18)* Form of Guarantee Agreement for Northwestern Capital I, II
and III.
5(a)* Opinion of Schiff Hardin & Waite re legality of securities
being registered.
5(b)* Opinions of Richards, Layton & Finger P.A. re legality of
securities being registered.
23(a)* Consent of Arthur Andersen LLP.
23(b) Consent of Schiff Hardin & Waite (included in the opinion
filed as Exhibit 5(a)).
23(c) Consent of Richards, Layton & Finger P.A. (included in the
opinion filed as Exhibit 5(b)).
24 Powers of Attorney contained in signature page of
Registration Statement.
25(a)* Form T-1 Statement of Eligibility of The Chase Manhattan
Bank to act as trustee under the Indenture.
25(b)* Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Amended and Restated
Declaration of Trust of Northwestern Capital Financing I.
25(c)* Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Amended and Restated
Declaration of Trust of Northwestern Capital Financing II.
25(d)* Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Amended and Restated
Declaration of Trust of Northwestern Capital Financing III.
25(e)* Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Guarantee Agreement
relating to Northwestern Capital Financing I.
25(f)* Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Guarantee Agreement
relating to Northwestern Capital Financing II.
25(g)* Form T-1 Statement of Eligibility of Wilmington Trust
Company to act as trustee under the Guarantee Agreement
relating to Northwestern Capital Financing III.
__________
* Filed herewith.
II-9
EXHIBIT 4(b)(10)
----------------
FORM OF INDENTURE
BETWEEN NORTHWESTERN CORPORATION AND
THE CHASE MANHATTAN BANK, AS TRUSTEE
<PAGE>
CROSS-REFERENCE TABLE
Section of
Trust Indenture
Act of 1939, as amended Section of Indenture
----------------------- --------------------
SECTION 310(a)(1) . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . 607
(a)(3) . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 608
SECTION 311(a) . . . . . . . . . . . . . . . . . . . . 612
(b) . . . . . . . . . . . . . . . . . . . . 612
SECTION 312(a) . . . . . . . . . . . . . . . . . . . . 701
(b) . . . . . . . . . . . . . . . . . . . . 701
(c) . . . . . . . . . . . . . . . . . . . . 701
SECTION 313(a) . . . . . . . . . . . . . . . . . . . . 702
(b) . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . 702
(d) . . . . . . . . . . . . . . . . . . . . 702
SECTION 314(a) . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . 102
SECTION 315(a) . . . . . . . . . . . . . . . . . . . 601, 602
(b) . . . . . . . . . . . . . . . . . . . . 601
(c) . . . . . . . . . . . . . . . . . . . . 602
(d) . . . . . . . . . . . . . . . . . . . . 602
(e) . . . . . . . . . . . . . . . . . . . . 514
SECTION 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . 104(d)
SECTION 317(a)(1) . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . 1003
SECTION 318(a) . . . . . . . . . . . . . . . . . . . . 107
-----------------
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Indenture.
(ii)
<PAGE>
TABLE OF CONTENTS
Page
----
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . 2
CEDEL S.A. . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . 3
Common Depositary . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . 3
Conversion Date . . . . . . . . . . . . . . . . . 3
Conversion Event . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . 3
Currency . . . . . . . . . . . . . . . . . . . . . 4
Debt . . . . . . . . . . . . . . . . . . . . . . . 4
Default . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . 4
Dollar" or "$ . . . . . . . . . . . . . . . . . . 4
Dollar Equivalent of the Currency Unit . . . . . . 4
Dollar Equivalent of the Foreign Currency . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . 4
Election Date . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . 4
European Communities . . . . . . . . . . . . . . . 4
European Monetary System . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . 4
Exchange Date . . . . . . . . . . . . . . . . . . 4
Exchange Rate Agent . . . . . . . . . . . . . . . 4
Exchange Rate Officer's Certificate . . . . . . . 4
Federal Bankruptcy Code . . . . . . . . . . . . . 5
Foreign Currency . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . . . . . . 6
Interest . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . 6
Market Exchange Rate . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . 7
(iii)
<PAGE>
Officers' Certificate . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . 9
Repayment Date . . . . . . . . . . . . . . . . . . 9
Repayment Price . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . 9
Securities . . . . . . . . . . . . . . . . . . . . 9
Security Register . . . . . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . 10
United States . . . . . . . . . . . . . . . . . . 10
United States person . . . . . . . . . . . . . . . 10
Valuation Date . . . . . . . . . . . . . . . . . . 10
Vice President . . . . . . . . . . . . . . . . . . 11
Voting Stock . . . . . . . . . . . . . . . . . . . 11
Yield to Maturity . . . . . . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and Opinions . . . . . . . 11
SECTION 103. Form of Documents Delivered to Trustee . . . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . 12
SECTION 105. Notices, etc . . . . . . . . . . . . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . 14
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . 14
SECTION 108. Effect of Headings and Table of Contents . . . . . 15
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . 15
SECTION 110. Separability Clause . . . . . . . . . . . . . . . 15
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . 15
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . 15
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . 15
(iv)
<PAGE>
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . 16
SECTION 202. Form of Trustee's Certificate of Authentication . 16
SECTION 203. Securities Issuable in Global Form . . . . . . . . 16
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . 17
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . 21
SECTION 303. Execution, Authentication, Delivery and Dating . . 22
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . 24
SECTION 305. Registration of Transfer and Exchange . . . . . . 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . 28
SECTION 307. Payment of Interest; Interest Rights Preserved . . 29
SECTION 308. Optional Interest Reset . . . . . . . . . . . . . 30
SECTION 309. Persons Deemed Owners . . . . . . . . . . . . . . 32
SECTION 310. Cancellation . . . . . . . . . . . . . . . . . . . 32
SECTION 311. Computation of Interest . . . . . . . . . . . . . 33
SECTION 312. Currency and Manner of Payments in Respect of
Securities . . . . . . . . . . . . . . . . . . . . 33
SECTION 313. Appointment and Resignation of Successor Exchange
Rate Agent . . . . . . . . . . . . . . . . . . . . 37
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . 38
SECTION 402. Application of Trust Money . . . . . . . . . . . . 39
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . 39
(v)
<PAGE>
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . 41
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . 42
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . 43
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . 44
SECTION 506. Application of Money Collected . . . . . . . . . . 44
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . 44
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . 45
SECTION 509. Restoration of Rights and Remedies . . . . . . . . 46
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . 46
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . 46
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . 46
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . 47
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . 47
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . 48
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities . . . . . . . 48
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . 49
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . 50
SECTION 604. Trustee Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . 51
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . 51
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . 51
SECTION 607. Compensation and Reimbursement . . . . . . . . . . 51
SECTION 608. Corporate Trustee Required; Eligibility;
Disqualifications; Conflicting Interests . . . . . 52
(vi)
<PAGE>
SECTION 609. Resignation and Removal; Appointment of Successor 52
SECTION 610. Acceptance of Appointment by Successor . . . . . . 54
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . 56
SECTION 612. Appointment of Authenticating Agent . . . . . . . 56
SECTION 613. Preferential Collection of Claims Against Company 58
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Disclosure of Names and Addresses of Holders . . . 58
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . 58
SECTION 703. Reports by Company . . . . . . . . . . . . . . . . 59
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 802. Successor Person Substituted . . . . . . . . . . . 60
SECTION 803. Assignment of Rights . . . . . . . . . . . . . . . 61
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of
Holders . . . . . . . . . . . . . . . . . . . . . 61
SECTION 902. Supplemental Indentures with Consent of Holders . 62
SECTION 903. Execution of Supplemental Indentures . . . . . . . 63
SECTION 904. Effect of Supplemental Indentures . . . . . . . . 63
SECTION 905. Conformity with Trust Indenture Act . . . . . . . 64
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . 64
SECTION 907. Notice of Supplemental Indentures . . . . . . . . 64
(vii)
<PAGE>
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium, if any, and
Interest, if any . . . . . . . . . . . . . . . . . 64
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . 64
SECTION 1003. Money for Securities Payments to Be Held in Trust 65
SECTION 1004. Statement as to Compliance . . . . . . . . . . . . 67
SECTION 1005. Additional Amounts . . . . . . . . . . . . . . . . 67
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . 68
SECTION 1007. Maintenance of Properties . . . . . . . . . . . . 68
SECTION 1008. Corporate Existence . . . . . . . . . . . . . . . 68
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article . . . . . . . . . . . . . 69
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . 69
SECTION 1103. Selection by Trustee of Securities to Be Redeemed 69
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . 70
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . 70
SECTION 1106. Securities Payable on Redemption Date . . . . . . 71
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . 71
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article . . . . . . . . . . . . . 72
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . 72
SECTION 1203. Redemption of Securities for Sinking Fund . . . . 72
ARTICLE THIRTEEN
Repayment at Option of Holders
SECTION 1301. Applicability of Article . . . . . . . . . . . . . 74
(viii)
<PAGE>
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . 74
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . 74
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable . . . . . . . . . . . . . . . . . . . 75
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . 75
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . 76
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . 76
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . 76
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . 77
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions . . 79
SECTION 1406. Reinstatement . . . . . . . . . . . . . . . . . . 80
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SIGNATURES AND SEAL . . . . . . . . . . . . . . . . . . . . . . . . 82
-----------------
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Indenture.
(ix)
<PAGE>
FORM OF INDENTURE
BETWEEN NORTHWESTERN CORPORATION AND
THE CHASE MANHATTAN BANK, AS TRUSTEE
INDENTURE, dated as of _______ 1, ____, between Northwestern
Corporation, a corporation duly organized and existing under the laws
of the State of Delaware (the "Company") having its principal office
at 33 Third Street, S.E., Huron, South Dakota 57350, and The Chase
Manhattan Bank, a New York banking corporation, as Trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in this Indenture
provided. This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by
such provisions. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper", as used in TIA
Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the Trust Indenture
Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States
<PAGE>
generally accepted accounting principles, and, except as
otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date
of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" has the meaning specified in Section 1005.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" of any specified Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to
authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community
of each such place. Where successive publications are required to be
made in Authorized Newspapers, such publications may be made in the
same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the
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Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions
in that Place of Payment or other location are authorized or obligated
by law or executive order to close.
"CEDEL S.A." means Cedel, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any
Vice President, its Treasurer or an Assistant Treasurer, and delivered
to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such
Currency and by a central bank or other public institution of or
within the international banking community for the settlement of
transactions, (ii) the ECU both within the European Monetary System
and for the settlement of transactions by public institutions of or
within the European Communities or (iii) any currency unit (or
composite currency) other than the ECU for the purposes for which it
was established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust
business shall be administered, which office on the date of execution
of this Indenture is located at 4 Chase MetroTech Center, Brooklyn,
New York 11245, except that with respect to presentation of Securities
for payment or for registration of transfer or exchange, such term
shall mean the office or agency of the Trustee at which, at any
particular time, its corporate agency business shall be conducted.
"Corporation" includes corporations, associations, companies and
business trusts.
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"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any
recognized confederation or association of such governments.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 312(f).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy
Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of
the European Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated
pursuant to Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and
(ii) the Dollar or Foreign Currency amounts of principal (and premium,
if any) and interest, if any (on an aggregate basis and on the basis
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of a Security having the lowest denomination principal amount
determined in accordance with Section 302 in the relevant Currency),
payable with respect to a Security of any series on the basis of such
Market Exchange Rate, sent (in the case of a telex) or signed (in the
case of a certificate) by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Foreign Currency" means any Currency other than Currency of the
United States.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301,
securities which are (i) direct obligations of the government which
issued the Currency in which the Securities of a particular series are
payable or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the government which
issued the Currency in which the Securities of such series are
payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit
obligations of such government payable in such Currency and are not
callable or redeemable at the option of the issuer thereof and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific
payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific
payment of interest or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that,
if at any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or more
series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other
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series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not
a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such
Original Issue Discount Security.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign
Currency on the other, the exchange rate between the relevant currency
unit and Dollars or such Foreign Currency calculated by the method
specified pursuant to Section 301 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency,
the noon (New York City time) buying rate for such Foreign Currency
for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign
Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or
Foreign Currency into which conversion is being made could be
purchased with the Foreign Currency from which conversion is being
made from major banks located in either New York City, London or any
other principal market for Dollars or such purchased Foreign Currency,
in each case determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section 301, in
the event of the unavailability of any of the exchange rates provided
for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate
Agent shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks
in New York City, London or another principal market for the Currency
in question, or such other quotations as the Exchange Rate Agent shall
deem appropriate. Unless otherwise specified by the Exchange Rate
Agent, if there is more than one market for dealing in any Currency by
reason of foreign exchange regulations or otherwise, the market to be
used in respect of such Currency shall be that upon which a
non-resident issuer of securities designated in such Currency would
purchase such Currency in order to make payments in respect of such
securities.
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"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, notice of
redemption, notice of option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder
money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto;
provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has
effected defeasance and/or covenant defeasance as
provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held
by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
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provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required by
TIA Section 313, (i) the principal amount of an Original Issue
Discount Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would
be (or shall have been declared to be) due and payable, at the time of
such determination, upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of any
Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent,
determined as of the date such Security is originally issued by the
Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of
an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in
clause (i) above), of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose
shall be equal to the principal face amount of such Indexed Security
at original issuance, unless otherwise provided with respect to such
Security pursuant to Section 301, and (iv) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company
or such other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or
premium, if any, on) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and
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premium, if any, on) and interest on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be
repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board
of directors, the chairman of the trust committee, the president, or
any vice president, secretary, any assistant secretary, treasurer, any
assistant treasurer, cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any assistant controller
within the corporate trust administration division or any other
officer of the 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 his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that if at any time
there is more than one Person acting as Trustee under this Indenture,
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"Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this
Indenture and shall more particularly mean Securities authenticated
and delivered under this Indenture, exclusive, however, of Securities
of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by
the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is due and
payable, as such date may be extended pursuant to the provisions of
Section 307.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or
more Subsidiaries, owns 50% or more of the shares of Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership
or other entity created or organized in or under the laws of the
United States or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
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"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation
(irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the
happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond
yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished. Every
certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to
Section 1004) shall include: (1) a statement that each individual
signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto; (2) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion
of each such individual, he has made such examination or investigation
as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
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one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents. Any certificate or opinion of an
officer of the Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters
are erroneous. Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture, they
may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture
to be given or taken by Holders of the Outstanding
Securities of all series or one or more series, as the case
may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing.
Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person
of a Security, shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute
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sufficient proof of authority. The fact and date of the
execution of any such instrument or writing, or the
authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems
sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the
same, shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at
its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders
entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding
TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date thirty (30)
days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall
be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not
later than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this
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Indenture to be made upon, given or furnished to, or filed with, (1)
the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration Division, or (2) the Company by the
Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to the Company addressed to
it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to each such
Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice. In
case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impractical to
mail notice of any event to Holders of Registered Securities when such
notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be sufficient giving of
such notice for every purpose hereunder. Any request, demand,
authorization, direction, notice, consent or waiver required or
permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the
country of publication. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act
to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any
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provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and
their successors hereunder and the Holders of Securities, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THIS INDENTURE IS
SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE REQUIRED
TO BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE
GOVERNED BY SUCH PROVISIONS.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of
this Indenture or of any Security other than a provision in the
Securities of any series which specifically states that such provision
shall apply in lieu of this Section) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue on the amount of such
payment for the period from and after such Interest Payment Date,
Redemption Date, Stated Maturity or Maturity, as the case may be.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series shall be in
substantially the form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities. If the forms of Securities of any series are established
by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Securities.
Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of
the Security. The Trustee's certificate of authentication on all
Securities shall be in substantially the form set forth in this
Article. The definitive Securities shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing
such Securities, as evidenced by their execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
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
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause
(10) of Section 301, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of
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Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of
such series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the
amount, of Outstanding Securities represented thereby shall be made by
the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304.
Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or Section 304 has been, or
simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 102
and need not be accompanied by an Opinion of Counsel. The provisions
of the last sentence of Section 303 shall apply to any Security
represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which
need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal
amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such
principal amount of Outstanding Securities represented by a permanent
global Security in the case of a permanent global Security in
registered form, the Holder of such permanent global Security in
registered form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303,
set forth in, or determined in the manner provided in, an Officers'
Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all
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of the following, as applicable (each of which (except for the matters
set forth in clauses (1), (2) and (19) below), if so provided, may be
determined from time to time by the Company with respect to unissued
Securities of the series and set forth in such Securities of the
series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other
series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of
the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates from
which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment
Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the
method by which such date or dates shall be determined, and
the basis upon which interest shall be calculated if other
than on the basis of a 360-day year of twelve 30-day months;
(5) the rights, if any, to defer payments of interest on the
Securities by extending the interest payment periods and the
duration of such extension;
(6) the security terms of the Securities of the series;
(7) the place or places, if any, other than or in addition to
The City of New York, where the principal of (and premium,
if any, on) and any interest on Securities of the series
shall be payable, any Registered Securities of the series
may be surrendered for registration of transfer, Securities
of the series may be surrendered for exchange and, if
different than the location specified in Section 105, the
place or places where notices or demands to or upon the
Company in respect of the Securities of the series and this
Indenture may be served;
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(8) the period or periods within which, the price or prices at
which, the Currency in which, and other terms and conditions
upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, if the
Company is to have that option;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking
fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which, the price
or prices at which, the Currency in which, and other terms
and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which
any Registered Securities of the series shall be issuable;
(11) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(12) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the method by which such
portion shall be determined;
(13) if other than Dollars, the Currency in which payment of the
principal of (and premium, if any, on) or interest, if any,
on the Securities of the series shall be payable or in which
the Securities of the series shall be denominated and the
particular provisions applicable thereto in accordance with,
in addition to or in lieu of any of the provisions of
Section 312;
(14) whether the amount of payments of principal of (and premium,
if any, on) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula
or other method (which index, formula or method may be
based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(15) whether the principal of (and premium, if any, on) and
interest, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof,
in a Currency other than that in which such Securities are
denominated or stated to be payable, the period or periods
within which (including the Election Date), and the terms
and conditions upon which, such election may be made, and
the time and manner of determining the exchange rate between
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the Currency in which such Securities are denominated or
stated to be payable and the Currency in which such
Securities are to be so payable, in each case in accordance
with, in addition to or in lieu of any of the provisions of
Section 312;
(16) the designation of the initial Exchange Rate Agent, if any;
(17) any provisions in modification of, in addition to or in lieu
of the provisions of Article Fourteen that shall be
applicable to the Securities of the series;
(18) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such
events as may be specified;
(19) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect
to Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(20) whether any Securities of the series are to be issuable
initially in temporary global form and whether any
Securities of the series are to be issuable in permanent
global form and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange
such interests for Securities of such series and of like
tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, and if
Securities of the series are to be issuable in global form,
the identity of any initial depositary therefor; provided,
that, unless otherwise provided, Securities shall be issued
as Registered Securities;
(21) the date as of which any temporary global Security
representing Outstanding Securities of the series shall be
dated if other than the date of original issuance of the
first Security of the series to be issued;
(22) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest, and the extent to
which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will
be paid if other than in the manner provided in Section 304;
(23) if Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a
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temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of
other conditions, the form and/or terms of such
certificates, documents or conditions;
(24) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1005 on the
Securities of the series to any Holder who is not a United
States person (including any modification to the definition
of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will
have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(25) if the Securities of the series are to be convertible into
or exchangeable for any securities of any Person (including
the Company), the terms and conditions upon which such
Securities will be so convertible or exchangeable; and
(26) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the
series (which terms shall not be inconsistent with the
requirements of the Trust Indenture Act or the provisions of
this Indenture). All Securities of any one series shall be
substantially identical except as to denomination and except
as may otherwise be provided in or pursuant to such Board
Resolution (subject to Section 303) and set forth in such
Officers' Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued
at the same time, and, unless otherwise provided, a series
may be reopened for issuances of additional Securities of
such series. If any of the terms of the series are
established by action taken pursuant to one or more Board
Resolutions, a copy of an appropriate record of such
action(s) shall be certified by the Secretary or an
Assistant Secretary of the Company and such Board
Resolutions shall be delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the
terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any
such provisions, the Registered Securities of such series, other than
Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any
integral multiple thereof.
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SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, its President or a Vice President, under its corporate seal
reproduced thereon attested by its Secretary or an Assistant
Secretary. The signature of any of these officers on the Securities
may be the manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced
on the Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with such Company Order
shall authenticate and deliver such Securities. If not all the
Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining terms of
particular Securities of such series such as interest rate, maturity
date, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to TIA Sections
315(a) through 315(d)) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(1) that the form or forms of such Securities have been
established in conformity with the provisions of this
Indenture;
(2) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(3) that such Securities, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable
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bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equitable
principles and to such other customary qualifications;
(4) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities, and of the
supplemental indentures, if any, have been complied with and
that authentication and delivery of such Securities and the
execution and delivery of the supplemental indenture, if
any, by the Trustee will not violate the terms of the
Indenture;
(5) that the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate
action with respect to such issuance; and
(6) that the issuance of such Securities will not contravene the
certificate of incorporation or by-laws of the Company or
result in any violation of any of the terms or provisions of
any law or regulation or of any indenture, mortgage or other
agreement known to such Counsel by which the Company is
bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued
at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company
Order and Opinion of Counsel otherwise required pursuant to the
preceding two paragraphs prior to or at the time of issuance of each
Security, but such documents shall be delivered prior to or at the
time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee. Each Registered Security shall
be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature
of an authorized officer, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver
such Security to the Trustee for cancellation as provided in Section
310 together with a written statement (which need not comply with
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Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series, upon
surrender of the temporary securities of such series at the office or
agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of
authorized denominations. Until so exchanged the temporary Securities
of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of Euroclear and
CEDEL S.A., for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities, in aggregate principal
amount equal to the principal amount of such temporary global
Security, executed by the Company. On or after the Exchange Date such
temporary global Security shall be surrendered by the Common
Depositary to the Trustee, as the Company's agent for such purpose, to
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be exchanged, in whole or from time to time in part, for definitive
Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities
of the same series of authorized denominations and of like tenor as
the portion of such temporary global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such
temporary global Security shall be in registered form or permanent
global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so
specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global
Security, upon such presentation by the Common Depositary, such
temporary global Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent
date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in
such other form as may be established pursuant to Section 301.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities
of the same series and of like tenor following the Exchange Date when
the account holder instructs Euroclear or CEDEL S.A., as the case may
be, to request such exchange on his behalf and delivers to Euroclear
or CEDEL S.A., as the case may be, a certificate in such form as may
be established pursuant to Section 301, dated no earlier than 15 days
prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL S.A., the Trustee,
any Authenticating Agent appointed for such series of Securities and
each Paying Agent. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person
at the offices of Euroclear or CEDEL S.A.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same
series and of like tenor authenticated and delivered hereunder, except
that, unless otherwise specified as contemplated by Section 301,
interest payable on a temporary global Security on an Interest Payment
Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear and CEDEL S.A. on such
Interest Payment Date upon delivery by Euroclear and CEDEL S.A. to the
Trustee of a certificate or certificates in such form as may be
established pursuant to Section 301, for credit without further
interest on or after such Interest Payment Date to the respective
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accounts of the Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have
each delivered to Euroclear or CEDEL S.A., as the case may be, a
certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in such form as may
be established pursuant to Section 301. Notwithstanding anything to
the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the
preceding two paragraphs of this Section and of the third paragraph of
Section 303 of this Indenture and the interests of the Persons who are
the beneficial owners of the temporary global Security with respect to
which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date
or the date of certification if such date occurs after the Exchange
Date, without further act or deed by such beneficial owners. Except
as otherwise provided in this paragraph, no payments or principal or
interest owing with respect to a beneficial interest in a temporary
global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in
a definitive Security. Any interest so received by Euroclear and
CEDEL S.A. and not paid as herein provided shall be returned to the
Trustee immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in
accordance with Section 1003.
SECTION 305. Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers
maintained in the Corporate Trust Office of the Trustee and in any
other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. At all
reasonable times, the Security Register shall be open to inspection by
the Trustee. The Trustee is hereby initially appointed as security
registrar (the "Security Registrar") for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee, one or more new
Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of
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any authorized denomination and of a like aggregate principal amount,
upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial
owner of an interest in a permanent global Security is entitled to
exchange such interest for Securities of such series and of like tenor
and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have
been given, then without unnecessary delay but in any event not later
than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in
aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security,
executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other depositary as shall
be specified in the Company Order with respect thereto to the Trustee,
as the Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without charge,
and the Trustee shall authenticate and deliver, in exchange for each
portion of such permanent global Security, an equal aggregate
principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which shall be in the form
of Registered Securities; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption. If a Registered
Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where
such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such
Registered Security, but will be payable on such Interest Payment Date
or proposed date of payment, as the case may be, only to the Person to
whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this
Indenture.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or
1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for
redemption of Securities of that series under Section 1103 or 1203 and
ending at the close of business on the date of the mailing of the
relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole
or in part, except the unredeemed portion of any Security being
redeemed in part, or (iii) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Security not
to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously
outstanding, or, in case any such mutilated Security has become or is
about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute, and upon Company Order the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and
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bearing a number not contemporaneously outstanding, or, in case any
such destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security. Upon the issuance of any
new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other government charge that
may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Registered Security which
is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose pursuant
to Section 1002; provided, however, that each installment of interest
on any Registered Security may at the Company's option be paid by (i)
mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the
address of such Person as it appears on the Security Register or (ii)
transfer to an account maintained by the payee located in the United
States.
Any interest on any Registered Security of any series 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, if applicable, interest
on such defaulted interest (to the extent lawful) at the rate
specified in the Securities of such series (such defaulted interest
and, if applicable, interest thereon herein collectively called
"Defaulted Interest") may be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered
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Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with
the Trustee an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given in the
manner provided in Section 106, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall
be paid to the Persons in whose name the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant
to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
SECTION 308. Optional Interest Reset.
If so provided pursuant to Section 301 with respect to the interest
rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be
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reset by the Company on the date or dates specified on the face of
such Security (each an "Optional Reset Date"). The Company may
exercise such option with respect to such Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior
to an Optional Reset Date for such Security. Not later than 40 days
prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any such Security
a notice (the "Reset Notice") indicating whether the Company has
elected to reset the interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable), and if so (i)
such new interest rate (or such new spread or spread multiplier, if
applicable) and (ii) the provisions, if any, for redemption during the
period from such Optional Reset Date to the next Optional Reset Date
or if there is no such next Optional Reset Date, to the Stated
Maturity of such Security (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or
periods during which and the price or prices at which such redemption
may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the
interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) provided for in the Reset Notice
and establish an interest rate (or a spread or spread multiplier used
to calculate such interest rate, if applicable) that is higher than
the interest rate (or the spread or spread multiplier, if applicable)
provided for in the Reset Notice, for the Subsequent Interest Period
by causing the Trustee to transmit, in the manner provided for in
Section 106, notice of such higher interest rate (or such higher
spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with
respect to which the interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or have
validly revoked any such tender) pursuant to the next succeeding
paragraph, will bear such higher interest rate (or such higher spread
or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each
Optional Reset Date at a price equal to the principal amount thereof
plus interest accrued to such Optional Reset Date. In order to obtain
repayment on an Optional Reset Date, the Holder must follow the
procedures set forth in Article Thirteen for repayment at the Option
of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such
Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may,
by written notice to the Trustee, revoke such tender or repayment
until the close of business on the tenth day before such Optional
Reset Date.
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SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any, on) and
(subject to Sections 305 and 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be
overdue, and none of the Company, the Trustee or any agent of the
Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any
depositary, as a Holder, with respect to such global Security or
impair, as between such depositary and owners of beneficial interests
in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 310. Cancellation.
All Securities surrendered for payment, redemption, repayment at the
option of the Holder, registration of transfer or exchange or for
credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities so delivered to the Trustee shall be promptly
canceled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and
all Securities so delivered shall be promptly canceled by the Trustee.
If the Company shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same
are surrendered to the Trustee for cancellation. No Securities shall
be authenticated in lieu of or in exchange for any Securities canceled
as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with its customary procedures
and certification of their disposal delivered to the Company unless by
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Company Order the Company shall direct that canceled Securities be
returned to it.
SECTION 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
SECTION 312. Currency and Manner of Payments in Respect of
Securities.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below
or the Holders of which have not made the election provided
for in paragraph (b) below, payment of the principal of (and
premium, if any, on) and interest, if any, on any Registered
Security of such series will be made in the Currency in
which such Registered Security is payable. The provisions
of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have
the option, subject to paragraphs (d) and (e) below, to
receive payments of principal of (and premium, if any, on)
or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by
delivering to the Trustee a written election with signature
guarantees and in the applicable form established pursuant
to Section 301, not later than the close of business on the
Election Date immediately preceding the applicable payment
date. If a Holder so elects to receive such payments in any
such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by
such Holder or such transferee by written notice to the
Trustee (but any such change must be made not later than the
close of business on the Election Date immediately preceding
the next payment date to be effective for the payment to be
made on such payment date, and no such change of election
may be made with respect to payments to be made on any
Registered Security of such series with respect to which an
Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or
Fourteen or with respect to which a notice of redemption has
been given by the Company or a notice of option to elect
repayment has been sent by such Holder or such transferee).
Any Holder of any such Registered Security who shall not
have delivered any such election to the Trustee not later
than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date
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in the relevant Currency as provided in Section 312(a). The
Trustee shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders
have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been
provided for pursuant to Section 301, then, unless otherwise
specified pursuant to Section 301, not later than the fourth
Business Day after the Election Date for each payment date
for Registered Securities of any series, the Exchange Rate
Agent will deliver to the Company a written notice
specifying, in the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts
of principal of (and premium, if any, on) and interest, if
any, on the Registered Securities to be paid on such payment
date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders
of Registered Securities of such series shall have elected
to be paid in another Currency as provided in paragraph (b)
above. If the election referred to in paragraph (b) above
has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless
otherwise specified pursuant to Section 301, on the second
Business Day preceding such payment date the Company will
deliver to the Trustee for such series of Registered
Securities an Exchange Rate Officer's Certificate in respect
of the Dollar or Foreign Currency payments to be made on
such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar or Foreign Currency amount
receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the third
Business Day (the "Valuation Date") immediately preceding
each payment date and such determination shall be conclusive
and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or
payable other than pursuant to an election provided for
pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any,
on) and interest, if any, on the applicable Securities
denominated or payable in such Foreign Currency occurring
after the last date on which such Foreign Currency was used
(the "Conversion Date"), the Dollar shall be the Currency of
payment for use on each such payment date. Unless otherwise
specified pursuant to Section 301, the Dollar amount to be
paid by the Company to the Trustee and by the Trustee or any
Paying Agent to the Holders of such Securities with respect
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to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent
of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent in the manner provided
in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency
shall have elected to be paid in another Currency as
provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder
shall receive payment in the Currency in which payment would
have been made in the absence of such election; and if a
Conversion Event occurs with respect to the Currency in
which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as
provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained
for each subsequent payment date by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on
the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and, subject to the
provisions of paragraph (h) below, shall be the sum of each
amount obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate
for such Component Currency on the Valuation Date with
respect to each payment.
(h) For purposes of this Section 312 the following terms shall
have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions
thereof which were represented in the relevant currency
unit, including, but not limited to, the ECU, on the
Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the
same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single
currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single
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Currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed
in such single Currency, and such amount shall thereafter be
a Specified Amount and such single Currency shall thereafter
be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency
shall be replaced by amounts of such two or more currencies,
having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the
Dollar Equivalent value of the Specified Amount of such
former Component Currency at the Market Exchange Rate
immediately before such division, and such amounts shall
thereafter be Specified Amounts, and such currencies shall
thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including,
but not limited to, the ECU, a Conversion Event (other than
any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable
Valuation Date, the Specified Amount of such Component
Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars
at the Market Exchange Rate in effect on the Conversion Date
of such Component Currency.
"Election Date" shall mean the date for any series of
Registered Securities as specified pursuant to clause (13)
of Section 301 by which the written election referred to in
paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the
Specified Amounts as specified above shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Company, the Trustee and all
Holders of such Securities denominated or payable in the relevant
Currency. The Exchange Rate Agent shall promptly give written notice
to the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the
Company will immediately give written notice thereof to the Trustee
and to the Exchange Rate Agent (and the Trustee will promptly
thereafter give notice in the manner provided for in Section 106 to
the affected Holders) specifying the Conversion Date. In the event
the Company so determines that a Conversion Event has occurred with
respect to the ECU or any other currency unit in which Securities are
denominated or payable, the Company will immediately give written
notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided
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for in Section 106 to the affected Holders) specifying the Conversion
Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event the Company determines in good faith
that any subsequent change in any Component Currency as set forth in
the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange
Rate Agent.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the
Exchange Rate Agent and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange Rate
Agent.
Unless otherwise specified pursuant to Section 301, if and so long as
the Securities of any series (i) are denominated in a Currency other
than Dollars or (ii) may be payable in a Currency other than Dollars,
or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such
series of Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for
the purpose of converting the issued Currency into the applicable
payment Currency for the payment of principal (and premium, if any)
and interest, if any, pursuant to Section 311.
No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor
Exchange Rate Agent as evidenced by a written instrument delivered to
the Company and the Trustee.
If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause with respect to the Securities of
one or more series, the Company, by or pursuant to a Board Resolution,
shall promptly appoint a successor Exchange Rate Agent or Exchange
Rate Agents with respect to the Securities of that or those series (it
being understood that any such successor Exchange Rate Agent may be
appointed with respect to the Securities of one or more or all of such
series and that, unless otherwise specified pursuant to Section 301,
at any time there shall only be one Exchange Rate Agent with respect
to the Securities of any particular series that are originally issued
by the Company on the same date and that are initially denominated
and/or payable in the same Currency).
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of
transfer or exchange of Securities of such series herein expressly
provided for and the obligation of the Company to pay any Additional
Amounts as contemplated by Section 1005) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, and (ii)
Securities of such series for whose payment money has
theretofore been deposited in trust with the Trustee or
any Paying Agent or segregated and held in trust by the
Company and thereafter repaid to the Company, as
provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and at
the expense, of the Company, and
in the case of (i), (ii) or (iii) above, the Company
has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for such
purpose an amount in the Currency in which the
Securities of such series are payable, sufficient to
pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the
case of Securities which have become due and payable)
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or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such
series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section
611 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest, if any,
for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series when such interest becomes due and payable, and
continuance of such default for a period of 30 days (subject
to the deferral of any interest due date by the Company in
accordance with the terms of any Securities); or
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(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of the Securities of that series and
Article Twelve; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture which affects or
is applicable to the Securities of that series (other than a
default in the performance, or breach of a covenant or
agreement which is specifically dealt with elsewhere in this
Section or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of all
Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the
Federal Bankruptcy Code or any other applicable federal or
state law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in
effect for a period of 90 consecutive days; or
(6) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable federal or state
law, or the consent by it to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due; or
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(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2), (3), (4) or (7)
of Section 501 with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount
(or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount
as may be specified in the terms of that series) of all of the
Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or
specified portion thereof) shall become immediately due and payable.
If an Event of Default specified in Section 501(5) or 501(6) occurs
and is continuing, then the principal amount of all the Securities
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has
been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter provided in this
Article, the Holders of a majority in principal amount of the
Outstanding Securities of that series (or of all series, as the case
may be), by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of
such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b),
312(d) and 312(e)),
(A) all overdue interest on all Outstanding Securities of
that series (or of all series, as the case may be),
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Securities of that series (or of all
series, as the case may be) which has become due
otherwise than by such declaration of acceleration, and
interest on such unpaid principal at the rate or rates
prescribed therefor in such Securities,
(C) interest on overdue interest at the rate or rates
prescribed therefor in such Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than
the non-payment of amounts of principal of (or premium, if
any, on) or interest, if any, on Securities of that series
(or of all series, as the case may be) which have become due
solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee
for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal (and premium, if
any) and interest, if any, and interest on any overdue principal (and
premium, if any) and on any overdue interest, if any, at the rate or
rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree
and may enforce the same against the Company or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and
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the rights of the Holders of Securities of such series (or of all
series, as the case may be) by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal, premium, if any, or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities
or Indexed Securities as may be specified in the terms of
such series, and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
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SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation
of the Securities, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest, if
any, on the Securities in respect of which or for the
benefit of which such money has been collected,
ratably, without preference or priority of any kind,
according to the amounts due and payable on such
Securities for principal (and premium, if any) and
interest, if any, respectively; and
Third: The balance, if any, to the Company or any other Person
or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series, in the case of any
Event of Default described in clause (1), (2), (3), (4) or
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(7) of Section 501, or, in the case of any Event of Default
described in clause (5) or (6) of Section 501, the Holders
of not less than 25% in principal amount of all Outstanding
Securities, have made written request to the Trustee to
institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the
Holders of a majority or more in principal amount of the
Outstanding Securities of that series, in the case of any
Event of Default described in clause (1), (2), (3), (4) or
(7) of Section 501, or, in the case of any Event of Default
described in clause (5) or (6) of Section 501, by the
Holders of a majority or more in principal amount of all
Outstanding Securities;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Securities of the same
series, in the case of any Event of Default described in clause (1),
(2), (3), (4) or (7) of Section 501, or of Holders of all Securities,
in the case of any Event of Default described in clause (5) or (6) of
Section 501, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Securities of the same series, in
the case of any Event of Default described in clause (1), (2), (3),
(4) or (7) of Section 501, or of Holders of all Securities, in the
case of any Event of Default described in clause (5) or (6) of Section
501.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if
applicable, Article Fourteen) and in such Security, of the principal
of (and premium, if any, on) and (subject to Section 307) interest, if
any, on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date)
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and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders of Securities shall be restored severally
and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities is intended to
be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee relating to
or arising under clause (1), (2), (3), (4) or (7) of Section 501, and,
with respect to all Securities, the Holders of not less than a
majority in principal amount of all Outstanding Securities shall have
the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
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trust or power conferred on the Trustee, not relating to or arising
under clause (1), (2), (3), (4) or (7) of Section 501, provided that
in each case
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it
in personal liability or be unjustly prejudicial to the
Holders of Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any
past default described in clause (1), (2), (3), (4) or (7) of Section
501 (or, in the case of a default described in clause (5) or (6) of
Section 501, the Holders of not less than a majority in principal
amount of all Outstanding Securities may waive any such past default),
and its consequences, except a default
(1) in respect of the payment of the principal of (or premium,
if any, on) or interest, if any, on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act;
provided, that neither this Section nor the Trust Indenture Act shall
be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company or the
Trustee or in any suit for the enforcement of the right to receive the
principal of and interest on any Security.
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SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such
duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture, but in the case of any
such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of
any series has occurred and is continuing, the Trustee shall
exercise, with respect to Securities of such series, such
of the rights and powers vested in it by this Indenture, 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 own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its
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own negligent failure to act, or its own willful misconduct
except that :
(1) this paragraph (c) shall not be construed to limit the
effect of (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith
in accordance with the direction of Holders pursuant to
Section 512 relating to the time, method and place of
conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in
the manner and to the extent provided in TIA Section 313(c), notice of
such Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the case
of a Default in the payment of the principal of (or premium, if any,
on) or interest, if any, on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of
such series, the 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
Trustee in good faith determine that the withholding of such notice is
in the interest of the Holders of Securities of such series; and
provided, further, that in the case of any Default of the character
specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be 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 or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel, and the written advice
of such counsel or any Opinion of Counsel 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 reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of
any series pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(6) the 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 Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company,
personally or by agent or attorney;
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(7) the 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 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; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
SECTION 604. Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate,
subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to TIA Sections 310(b) and 311, may otherwise
deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
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(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements
and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the
performance of such obligations of the Company, the Trustee shall have
a claim prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the
payment of principal of (and premium, if any, on) or interest on
particular Securities.
SECTION 608. Corporate Trustee Required; Eligibility;
Disqualifications; Conflicting Interests
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have
a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of federal, state, territorial or
District of Columbia supervising or examining authority, then for the
purposes of this Section, 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. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
The Trustee for the Securities of any series issued hereunder shall
be subject to the provisions of TIA Section 310(b) during the period
of time provided for therein. In determining whether the Trustee
has a conflicting interest as defined in TIA Section 310(b) with
respect to the Securities of any series, there shall be excluded for
purposes of the conflicting interest provisions of such Section
310(b) the Securities of every other series issued under this
Indenture. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the second to
last paragraph of TIA Section 310(b).
SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become
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effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable
requirements of Section 610.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by
a successor Trustee required by Section 610 shall not have
been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less
than a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by
the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
608 and shall fail to resign after written request
therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months,
or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board
Resolution, may remove the Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any
Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of
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Trustee for any cause, with respect to the Securities of one
or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series).
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the
Company. If no successor trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with
respect to the Securities of any series to the Holders of
Securities of such series in the manner provided for in
Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring
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Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such
successor Trustee relates. Whenever there is a successor
Trustee with respect to one or more (but less than all)
series of Securities issued pursuant to this Indenture, the
terms "Indenture" and "Securities" shall have the meanings
specified in the provisos to the respective definitions of
those terms in Section 101 which contemplate such situation.
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(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor
Trustee all rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Securities; and in case at that time any of the
Securities shall not have been authenticated, any successor Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such
cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt
the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 612. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series and the
Trustee shall give written notice of such appointment to all Holders
of Securities of the series with respect to which such Authenticating
Agent will serve, in the manner provided for in Section 106.
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly
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furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, 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. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall give written notice
of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and
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the Trustee shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication,
an alternate certificate of authentication in the following form:
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:
Authenticating Agent
By:
Authorized Officer
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that none of the Company or the
Trustee or any agent of either of them shall be held accountable by
reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with TIA Section 312,
regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit to the Holders of Securities, in the manner
and to the extent provided in TIA Section 313(c), a brief report dated
as of such May 15 if required by TIA Section 313. A copy of each such
report shall, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which the Securities are
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listed, with the Commission and with the Company. The Company will
notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall
file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such additional information, documents and
reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
and
(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the
filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by
the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease, or permit one or more of its
Subsidiaries to convey, transfer or lease, all or substantially all of
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the property and assets of the Company and its Subsidiaries on a
consolidated basis, to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company and its Subsidiaries on a consolidated
basis (A) shall be a corporation, partnership or trust
organized and validly existing under the laws of the United
States of America, any state thereof or the District of
Columbia and (B) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the Company's
obligation for the due and punctual payment of the principal
of (and premium, if any, on) and interest, if any, on all
the Securities and the performance and observance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing; and
(3) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply
with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
This Section shall only apply to a merger or consolidation in which
the Company is not the surviving corporation and to conveyances,
leases and transfers by the Company as transferor or lessor.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company and its Subsidiaries on a
consolidated basis to any Person in accordance with Section 801, the
successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same
effect as if such successor Person had been named as the Company
herein, and in the event of any such conveyance or transfer, the
Company (which term shall for this purpose mean the Person named as
the "Company" in the first paragraph of this Indenture or any
successor Person which shall theretofore become such in the manner
described in Section 801), except in the case of a lease, shall be
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discharged of all obligations and covenants under this Indenture and
the Securities and may be dissolved and liquidated.
SECTION 803. Assignment of Rights.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or
indirect wholly-owned Subsidiary of the Company; provided, that in the
event of any such assignment, the Company will remain liable for all
of its obligations. Subject to the foregoing, this Indenture will be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. This Indenture may not otherwise
be assigned by the parties hereto.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are being
included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default (and if such Events
of Default are to be for the benefit of less than all series
of Securities, stating that such Events of Default are being
included solely for the benefit of such series); or
(4) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(5) to secure the Securities; or
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(6) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 610(b); or
(8) to close this Indenture with respect to the authentication
and delivery of additional series of Securities, to cure any
ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or
questions arising under this Indenture; provided such action
shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series, by Act
of said Holders delivered to the Company and the Trustee, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture which affect such
series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security of such series,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security of such series, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof,
or change any obligation of the Company to pay Additional
Amounts contemplated by Section 1005 (except as contemplated
by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue
Discount Security of such series that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof
provable in bankruptcy pursuant to Section 504, or change
the redemption provisions of any Security, or adversely
affect any right of repayment at the option of any Holder of
any Security of such series, or change any Place of Payment
where, or the Currency in which, any Security of such series
or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
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payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or Repayment Date, as the
case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series required for any such supplemental
indenture, for any waiver of compliance with certain
provisions of this Indenture which affect such series or
certain defaults applicable to such series hereunder and
their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such
series cannot be modified or waived without the consent of
the Holder of each Outstanding Security of such series.
Any such supplemental indenture adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture,
or modifying in any manner the rights of the Holders of Securities of
such series, shall not affect the rights under this Indenture of the
Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting
forth in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest, if
any.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the
principal of (and premium, if any, on) and interest, if any, on the
Securities of that series in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities
of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with
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the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from
time to time rescind any such designation; provided, however, that no
such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in accordance with
the requirements set forth above for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise
specified with respect to any Securities as contemplated by Section
301 with respect to a series of Securities, the Company hereby
designates as a Place of Payment for each series of Securities the
office or agency of the Company in The City of New York, and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are
denominated in a Currency other than Dollars or (ii) may be payable in
a Currency other than Dollars, or so long as it is required under any
other provision of the Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, at least
one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any, on) or interest, if
any, on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections 312(b),
312(d) and 312(e)) sufficient to pay the principal (and premium, if
any) or interest, if any, so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to or on each due date of the
principal of (and premium, if any, on) or interest on any Securities
of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal,
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premium or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so
to act.
The Company will cause each Paying Agent (other than the Trustee) for
any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent
will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) and interest, if any, on
Securities of such series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the
making of any payment of principal of (or premium, if any,
on) or interest, if any, on the Securities of such series;
and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon
which sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if
any, on) or interest, if any, on any Security of any series, and
remaining unclaimed for two years after such principal (and premium,
if any) or interest, if any, has become due and payable shall be paid
to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security
or coupon shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company
cause to be published once, in an Authorized Newspaper, notice that
such money remains unclaimed and that, after a date specified therein,
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which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
SECTION 1004. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this
Section 1004, such compliance shall be determined without regard to
any period of grace or requirement of notice under this Indenture.
SECTION 1005. Additional Amounts.
If any Securities of a series provide for the payment of additional
amounts to any Holder who is not a United States person in respect of
any tax, assessment or governmental charge ("Additional Amounts"), the
Company will pay to the Holder of any Security of such series such
Additional Amounts as may be specified as contemplated by Section 301.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal (or premium, if any, on) or interest, if any,
on, or in respect of, any Security of a series or the net proceeds
received on the sale or exchange of any Security of a series, such
mention shall be deemed to include mention of the payment of
Additional Amounts provided for by the terms of such series
established pursuant to Section 301 to the extent that, in such
context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts,
at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will
not bear interest prior to Maturity, the first day on which a payment
of principal (and premium, if any) is made), and at least 10 days
prior to each date of payment of principal (and premium, if any) or
interest, if any, if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying
Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any, on)
or interest, if any, on the Securities of that series shall be made to
Holders of Securities of that series who are not United States persons
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any
such withholding shall be required, then such Officers' Certificate
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shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities of that series and the
Company will pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. In the event that
the Trustee or any Paying Agent, as the case may be, shall not so
receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding
or deduction is required with respect to any payment of principal (and
premium, if any) or interest, if any, with respect to any Securities
of a series until it shall have received a certificate advising
otherwise and (ii) to make all payments of principal (and premium, if
any) and interest, if any, with respect to the Securities of a series
without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee and any Paying Agent for,
and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to
this Section.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes,
assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1007. Maintenance of Properties.
The Company will cause all property necessary for the operation of the
business of the Company and its Subsidiaries as a whole to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may
be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent or restrict the
sale, abandonment or other disposition of any of such property if such
action is, in the judgment of the Company, desirable in the conduct of
the business of the Company and its Subsidiaries as a whole and not
disadvantageous in any material respect to the Holders.
SECTION 1008. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its
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corporate existence and the rights (charter and statutory) and
franchises of the Company and any Subsidiary; provided, however, that
the Company shall not be required to preserve any such right or
franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company
and its Subsidiaries as a whole.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this
Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to
select the Securities to be redeemed pursuant to Section 1103. In the
case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions of the principal of Securities of such series; provided,
however, that no such partial redemption shall reduce the portion of
the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series
established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
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selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security
which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301, notice
of redemption shall be given in the manner provided for in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (together
with accrued interest, if any, to the Redemption Date
payable as provided in Section 1106) will become due and
payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if
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applicable as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the Redemption Price of, and accrued interest on,
all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except,
if applicable as provided in Sections 312(b), 312(d) and 312(e))
(together with accrued interest, if any, to the Redemption Date), and
from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest.
Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption or portion thereof shall not be
so paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the Redemption
Date at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) set forth in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series, of any authorized
denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of any series
is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, the cash amount
of any mandatory sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied
to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a
series in cash, subject to the limitations set forth at Section 1001,
the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for
redemption) theretofore purchased or otherwise acquired by the Company
and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the
Company or for Securities of such series which have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of the same series required to
be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, that such Securities have
not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment
shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by
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payment of cash in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided
in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if
any, which is to be satisfied by delivering or crediting Securities of
that series pursuant to Section 1202 (which Securities will, if not
previously delivered, accompany such certificate) and whether the
Company intends to exercise its right to make a permitted optional
sinking fund payment with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. In
the case of the failure of the Company to deliver such certificate,
the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall
be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to
deliver or credit Securities as provided in Section 1202 and without
the right to make any optional sinking fund payment, if any, with
respect to such series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 1106 and
1107.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee or a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003)
in cash a sum equal to any interest that will accrue to the date fixed
for redemption of Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid
into such sinking fund on the next succeeding sinking fund payment
date, together with any unused balance of any preceding sinking fund
payment or payments for such series, does not exceed in the aggregate
$100,000, the Trustee, unless requested by the Company, shall not give
the next succeeding notice of the redemption of Securities of such
series through the operation of the sinking fund. Any such unused
balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or, at the request of the
Company, shall be applied at any time or from time to time to the
purchase of Securities of such series, by public or private purchase,
in the open market or otherwise, at a purchase price for such
Securities (excluding accrued interest and brokerage commissions, for
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which the Trustee or any Paying Agent will be reimbursed by the
Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in
the terms of such Securities, be repaid at a price equal to the
principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that on or before the
Repayment Date it will deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections 312(b),
312(d) and 312(e)) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the
principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest, if any, on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on
the reverse of such Securities. To be repaid at the option of the
Holder, any Security so providing for such repayment, with the "Option
to Elect Repayment" form on the reverse of such Security duly
completed by the Holder (or by the Holder's attorney duly authorized
in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other
place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 45 days nor later
than 30 days prior to the Repayment Date. If less than the entire
principal amount of such Security is to be repaid in accordance with
the terms of such Security, the principal amount of such Security to
be repaid, in increments of the minimum denomination for Securities of
such series, and the denomination or denominations of the Security or
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Securities to be issued to the Holder for the portion of the principal
amount of such Security surrendered that is not to be repaid, must be
specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such
Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a
part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof,
exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such
Securities, such Securities or the portions thereof, as the case may
be, to be repaid shall become due and payable and shall be paid by the
Company on the Repayment Date therein specified, and on and after such
Repayment Date (unless the Company shall default in the payment of
such Securities on such Repayment Date) such Securities shall, if the
same were interest-bearing, cease to bear interest. Upon surrender of
any such Security for repayment in accordance with such provisions,
the principal amount of such Security so to be repaid shall be paid by
the Company, together with accrued interest, if any, to the Repayment
Date; provided, however, that in the case of Registered Securities,
installments of interest, if any, whose Stated Maturity is on or prior
to the Repayment Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment
Date) shall, until paid, bear interest from the Repayment Date at the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) set forth in the Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Registered
Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount
equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen
shall apply to each series of Securities, and the Company may, at its
option, effect (i) defeasance of the Securities of or within a series
under Section 1402 or (ii) covenant defeasance of or within a series
under Section 1403 in accordance with the terms of such Securities and
in accordance with this Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations
with respect to such Outstanding Securities on the date the conditions
set forth in Section 1404 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented
by such Outstanding Securities, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in (1) and (2) below, and to
have satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (1)
the rights of Holders of such Outstanding Securities to receive,
solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of
(and premium, if any, on) and interest on such Securities (2) the
Company's obligations with respect to such Securities under Sections
304, 305, 306, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by
Section 1005, (3) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and (4) this Article Fourteen. Subject to
compliance with this Article Fourteen, the Company may exercise its
option under this Section 1402 notwithstanding the prior exercise of
its option under Section 1403 with respect to such Securities.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the
Company shall be released from its obligations under Section 803 and
Sections 1006 through 1008, and, if specified pursuant to Section 301,
its obligations under any other covenant, with respect to such
Outstanding Securities on and after the date the conditions set forth
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in Section 1404 are satisfied (hereinafter, "covenant defeasance"),
and such Securities shall thereafter be deemed not to be "Outstanding"
for the purposes of any direction, waiver, consent or declaration or
Act of Holders (and the consequences of any thereof) in connection
with such covenants, but shall continue to be deemed "Outstanding" for
all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities,
the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of reference in any
such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event
of Default under Section 501(4) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a
series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying
the requirements of Section 608 who shall agree to comply
with the provisions of this Article Fourteen applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such
Securities, (A) an amount (in such Currency in which such
Securities are then specified as payable at Stated
Maturity), or (B) Government Obligations applicable to such
Securities (determined on the basis of the Currency in which
such Securities are then specified as payable at Stated
Maturity) which through the scheduled payment of principal
and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due
date of any payment of principal (including any premium) and
interest, if any, under such Securities, money in an amount,
or (C) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of ( and
premium, if any, on) and interest, if any, on such
Outstanding Securities on the Stated Maturity (or Redemption
Date, if applicable) of such principal (and premium, if any)
or installment or interest and (ii) any mandatory sinking
fund payments or analogous payments applicable to such
Outstanding Securities on the day on which such payments are
-77-
<PAGE>
due and payable in accordance with the terms of this
Indenture and of such Securities; provided that the Trustee
shall have been irrevocably instructed to apply such money
or the proceeds of such Government Obligations to said
payments with respect to such Securities. Before such a
deposit, the Company may give to the Trustee, in accordance
with Section 1102 hereof, a notice of its election to redeem
all or any portion of such Outstanding Securities at a
future date in accordance with the terms of the Securities
of such series and Article Eleven hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if
given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities shall have occurred and be continuing on the date
of such deposit or, insofar as paragraphs (5) and (6) of
Section 501 are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to
which the Company is a party or by which it is bound.
(4) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or
(y) since the date of execution of this Indenture, there has
been a change in the applicable United States federal income
tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities will not recognize income, gain or
loss for United States federal income tax purposes as a
result of such defeasance and will be subject to United
States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
such defeasance had not occurred.
(5) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities
will not recognize income, gain or loss for United States
federal income tax purposes as a result of such covenant
defeasance and will be subject to United States federal
income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant
defeasance had not occurred.
-78-
<PAGE>
(6) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms,
conditions or limitations in connection therewith pursuant
to Section 301.
(7) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the deposit contemplated by
subsection (1) shall not result in the Company, the Trustee
or the defeasance trust being deemed an "investment company"
under the Investment Company Act of 1940, as amended.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the
defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied
with.
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively for
purposes of this Section 1405, the "Trustee") pursuant to Section 1404
in respect of such Outstanding Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, if any, but such money
need not be segregated from other funds except to the extent required
by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has
been made, (i) the Holder of a Security in respect of which such
deposit was made is entitled to, and does, elect pursuant to Section
312(b) or the terms of such Security to receive payment in a Currency
other than that in which the deposit pursuant to Section 1404(1) has
been made in respect of such Security, or (ii) a Conversion Event
occurs as contemplated in Section 312(d) or 312(e) or by the terms of
any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security
shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (premium, if any,
on), and interest, if any, on such Security as they become due out of
the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property
-79-
<PAGE>
deposited in respect of such Security into the Currency in which such
Security becomes payable as a result of such election or Conversion
Event based on the applicable Market Exchange Rate for such Currency
in effect on the third Business Day prior to each payment date,
except, with respect to a Conversion Event, for such Currency in
effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and
interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of such
Outstanding Securities.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under
this Indenture and such Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 1402 or 1403, as
the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1405;
provided, however, that if the Company makes any payment of principal
of (or premium, if any, on) or interest, if any, on any such Security
following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or Paying Agent.
-80-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
Seal
NORTHWESTERN CORPORATION
By:__________________________________
Daniel K. Newell
Vice President - Finance and
Chief Financial Officer
Attest: __________________
Alan D. Dietrich
Secretary
Seal
THE CHASE MANHATTAN BANK
By:__________________________________
Name:
Title:
Attest: ____________________
-81-
<PAGE>
STATE OF SOUTH DAKOTA )
) SS
COUNTY OF BEADLE )
On the day of _______________ __, _____, before me personally
_____________________ came to be known, who, being by me duly sworn,
did depose and say that he is the ___________________________________
________________________________________ of Northwestern Corporation,
one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that
the seal affixed to the said instrument is such corporation seal; that
it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this ____ day of ________________, ____.
___________________________________
(Notarial Seal) _________________
_________________
My Commission Expires ________
STATE OF SOUTH DAKOTA )
) SS
COUNTY OF BEADLE )
On the day _____ of ______________, _____, before me personally
___________________ came to be known, who, being by me duly sworn, did
depose and say that he is the ____________________ of The Chase
Manhattan Bank, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such
corporation seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by
like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this ____ day of _____________, ____.
___________________________________
(Notarial Seal) _________________
_________________
My Commission Expires _______
-82-
EXHIBIT 4(b)(11)
----------------
CERTIFICATE OF TRUST
OF
NORTHWESTERN CAPITAL FINANCING I
This Certificate of Trust of Northwestern Capital Financing I
(the "Trust"), dated June 30, 1998, is being duly executed and filed
by the undersigned, as the only trustees of the Trust, to form a
business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801, ET SEQ.).
1. NAME. The name of the business trust being formed hereby is
Northwestern Capital Financing I.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust which has its principal place of business in the
State of Delaware are:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
3. EFFECTIVE DATE. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of
the Trust, have executed this Certificate of Trust as of the date
first above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: /s/ Jill K. Morrison
-------------------------------
Name: Jill K. Morrison
Title: Administrative Account Manager
/s/ Merle D. Lewis
-------------------------------
MERLE D. LEWIS, not in his individual
capacity but solely as Trustee
/s/ Richard R. Hylland
--------------------------------
RICHARD R. HYLLAND, not in his
individual capacity but solely
as Trustee
EXHIBIT 4(b)(12)
----------------
RESTATED CERTIFICATE OF TRUST
OF
NWPS CAPITAL FINANCING II
THIS Restated Certificate of Trust of NWPS Capital Financing II
(the "Trust"), dated as of June 30, 1998, is being duly executed and
filed by the undersigned, as the only trustees of the Trust, to amend
and restate the original Certificate of Trust of the Trust which was
filed on June 19, 1995 with the Secretary of State of the State of
Delaware under the Delaware Business Trust Act (12 DEL. C. Section
3801 ET SEQ.) (the "Original Certificate of Trust").
The Original Certificate of Trust is hereby restated in its
entirety to read as follows:
1. NAME. The name of the business trust formed hereby is
Northwestern Capital Financing II.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware are Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Restated Certificate of Trust shall be
effective as of its filing with the Delaware Secretary of State.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Restated Certificate of Trust as of the date
first-above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: /s/ Jill K. Morrison
--------------------------------
Name: Jill K. Morrison
Title: Administrative Account Manager
/s/ Merle D. Lewis
-------------------------------------
MERLE D. LEWIS, not in his individual
capacity but solely as Trustee
/s/ Richard R. Hylland
--------------------------------
RICHARD R. HYLLAND, not in his
individual capacity but solely
as Trustee
EXHIBIT 4(b)(13)
----------------
RESTATED CERTIFICATE OF TRUST
OF
NWPS CAPITAL FINANCING III
THIS Restated Certificate of Trust of NWPS Capital Financing III
(the "Trust"), dated as of June 30, 1998, is being duly executed and
filed by the undersigned, as the only trustees of the Trust, to amend
and restate the original Certificate of Trust of the Trust which was
filed on June 19, 1995 with the Secretary of State of the State of
Delaware under the Delaware Business Trust Act (12 DEL. C. Section
3801 ET SEQ.) (the "Original Certificate of Trust").
The Original Certificate of Trust is hereby restated in its
entirety to read as follows:
1. NAME. The name of the business trust formed hereby is
Northwestern Capital Financing III.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware are Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Restated Certificate of Trust shall be
effective as of its filing with the Delaware Secretary of State.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Restated Certificate of Trust as of the date
first-above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: /s/ Jill K. Morrison
--------------------------------------
Name: Jill K. Morrison
Title: Administrative Account Manager
/s/ Merle D. Lewis
-------------------------------------------
MERLE D. LEWIS, not in his individual
capacity but solely as Trustee
/s/ Richard R. Hylland
-------------------------------------------
RICHARD R. HYLLAND, not in his individual
capacity but solely as Trustee
EXHIBIT 4(b)(14)
----------------
DECLARATION OF TRUST
OF
NORTHWESTERN CAPITAL FINANCING I
DECLARATION OF TRUST, dated as of June 30, 1998 (this
"Declaration of Trust"), among Northwestern Corporation, a Delaware
corporation, as Sponsor (the "Sponsor"), and Merle D. Lewis, Richard
R. Hylland, and Wilmington Trust Company, a Delaware banking
corporation, not in their individual capacities but solely as trustees
of the Trust (collectively, the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Northwestern
Capital Financing I" (the "Trust"), in which name the Trustees, or the
Sponsor to the extent provided herein, may conduct the business of the
Trust, make and execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over
to the Trustees the sum of $10. The Trustees hereby acknowledge
receipt of such amount in trust from the Sponsor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that
they will hold the trust estate in trust for the benefit of the
Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title
12 of the Delaware Code, 12 DEL. C. Section 3801 ET SEQ. (the
"Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware
Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act
Registration Statement (as defined below), to provide for the
contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated
Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or
approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to file with the Securities
and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on Form S-3 (the
"1993 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the
Preferred Securities of the Trust under the Securities Act of 1933, as
amended, and (b) a Registration Statement on Form 8-A (the "1934 Act
Registration Statement"), including all pre-effective and post-
effective amendments thereto, relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to file with the New
York Stock Exchange and execute on behalf of the Trust a listing
<PAGE>
application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to
cause the Preferred Securities to be listed on the New York Stock
Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Preferred
Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust that
certain Underwriting Agreement among the Trust, the Sponsor and the
several Underwriters named therein, substantially in the form included
as an exhibit to the 1933 Act Registration Statement. In the event
that any filing referred to in clauses (i)-(iii) above is required by
the rules and regulations of the Commission, the New York Stock
Exchange or state securities or "Blue Sky" laws, to be executed on
behalf of the Trust by the Trustees, Merle D. Lewis and Richard R.
Hylland, in their capacities as Trustees of the Trust, are hereby
authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood
that Wilmington Trust Company, in its capacity as Trustee of the
Trust, shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and
regulations of the Commission, the New York Stock Exchange or state
securities or "Blue Sky" laws. In connection with all of the
foregoing, the Sponsor and each Trustee, solely in its capacity as
Trustee of the Trust, hereby constitutes and appoints Merle D. Lewis,
as his or its, as the case may be, true and lawful attorney-in-fact,
and agent, with full power of substitution and resubstitution, for the
Sponsor or such Trustee or in the Sponsor's or such Trustee's name,
place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to the 1933 Act
Registration Statement and the 1934 Act Registration Statement, and to
file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the
Sponsor or such Trustee might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor
which may increase or decrease the number of Trustees; provided,
however, that the number of Trustees shall in no event be less than
three (3); and provided, further that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who
is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware. Subject to the foregoing, the Sponsor is entitled to
-2-
<PAGE>
appoint or remove without cause any Trustee at any time. The Trustees
may resign upon thirty (30) days prior notice to the Sponsor.
7. Notwithstanding any other provision of this Declaration of
Trust, Wilmington Trust Company, in its capacity as Trustee of the
Trust, shall not be entitled to exercise any of the powers, nor shall
Wilmington Trust Company, in its capacity as Trustee of the Trust,
have any duties and responsibilities of the other Trustees described
in this Declaration of Trust. Wilmington Trust Company, in its
capacity as Trustee of the Trust, shall be a Trustee for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
8. No 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 (each, an "Indemnified Person" and collectively, the
"Indemnified Persons"), shall be liable, responsible or accountable,
in damage or otherwise, to the Trust or any other Indemnified 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 of Trust 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 wilful misconduct with respect to such acts or
omissions.
9. To the fullest extent permitted by applicable law, the
Sponsor 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 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 of Trust, 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
wilful misconduct with respect to such acts or omissions.
10. 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 9.
11. Wilmington Trust Company 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, the Sponsor and the other Trustees shall
have no rights by virtue of this Declaration of Trust 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
-3-
<PAGE>
of the Trust, shall not be deemed wrongful or improper. Wilmington
Trust Company shall not be obligated to present 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 Wilmington Trust Company 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. Wilmington Trust Company may engage or be interested in
any financial or other transactions with the Sponsor or any affiliate
of the Sponsor, or may act on any committee or body of holders of
securities or other obligations of the Sponsor or its affiliates.
12. This Declaration of Trust shall be governed by, and
construed in accordance with, the laws of the State of Delaware
(without regard to conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first
above written.
Northwestern Corporation,
as Sponsor
By: /s/ Richard R. Hylland
-------------------------------
Name: Richard R. Hylland
Title: President and Chief
Operating Officer
Wilmington Trust Company,
not in its individual capacity
but solely as Trustee
By: /s/ Jill K. Morrison
------------------------------
Name: Jill K. Morrison
Title: Administrative Account Manager
/s/ Merle D. Lewis
-----------------------------------
Merle D. Lewis, not in his individual
capacity but solely as Trustee
/s/ Richard R. Hylland
-----------------------------------
Richard R. Hylland, not in his
individual capacity but solely as Trustee
-4-
EXHIBIT 4(b)(15)
----------------
FIRST AMENDMENT TO THE DECLARATION OF TRUST
OF
NWPS CAPITAL FINANCING II
THIS FIRST AMENDMENT TO THE DECLARATION OF TRUST OF NWPS CAPITAL
FINANCING II, dated as of June 30, 1998 (this "Amendment"), by and
among Northwestern Corporation, a Delaware corporation (formerly known
as Northwestern Public Service Company), as sponsor (the "Sponsor"),
and Merle D. Lewis, Richard R. Hylland and Wilmington Trust Company, a
Delaware banking corporation, as trustees (collectively, the
"Trustees").
WHEREAS, NWPS Capital Financing II (the "Trust") has heretofore
been formed as a business trust under the Delaware Business Trust Act
(12 DEL. C. Section 3801, ET SEQ.) pursuant to a Declaration of Trust
of the Trust, dated as of June 19, 1995 (the "Original Declaration"),
and a Certificate of Trust of the Trust, dated as of June 19, 1995, as
filed in the office of the Secretary of State of the State of Delaware
(the "Secretary of State");
WHEREAS, the Sponsor and the Trustees wish to change the name of
the Trust as set forth below;
WHEREAS, the Sponsor and the Trustees hereby consent to the
adoption of this Amendment; and
WHEREAS, the parties hereto desire to amend the Original
Declaration as set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
AMENDMENTS
1. The name of the Trust is hereby changed from "NWPS Capital
Financing II" to "Northwestern Capital Financing II", such that all
references in the Original Declaration to "NWPS Capital Financing II"
shall be deemed to refer to "Northwestern Capital Financing II" and
all future business of the Trust shall be conducted in such name. The
Trustees are hereby authorized to execute and file a restated
certificate of trust with the Secretary of State to reflect the change
of the name of the Trust.
2. All references to "Northwestern Public Service Company" in
the Original Declaration shall be deemed to refer to "Northwestern
Corporation".
MISCELLANEOUS
1. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon, and shall enure to the benefit of, the parties hereto and their
respective successors and assigns.
2. FULL FORCE AND EFFECT. Except to the extent modified
hereby, the Original Declaration shall remain in full force and
effect.
<PAGE>
3. COUNTERPARTS. This Amendment may be executed in
counterparts, all of which together shall constitute one agreement
binding on all parties hereto, notwithstanding that all such parties
are not signatories to the original or same counterpart.
4. GOVERNING LAW. This Amendment shall be governed by, and
construed under, the laws of the State of Delaware, all rights and
remedies being governed by said laws.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the day and year first above written.
NORTHWESTERN CORPORATION,
as Sponsor
By: /s/ Richard R. Hylland
-------------------------------
Name: Richard R. Hylland
Title: President and Chief
Operating Officer
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Trustee
By: /s/ Jill K. Morrison
-------------------------------
Name: Jill K. Morrison
Title: Administrative Account Manager
/s/ Merle D. Lewis
---------------------------------
MERLE D. LEWIS, not in his individual
capacity but solely as Trustee
/s/ Richard R. Hylland
---------------------------------
RICHARD R. HYLLAND, not in his
individual capacity but solely as
Trustee
-2-
EXHIBIT 4(b)(16)
----------------
FIRST AMENDMENT TO THE DECLARATION OF TRUST
OF
NWPS CAPITAL FINANCING III
THIS FIRST AMENDMENT TO THE DECLARATION OF TRUST OF NWPS CAPITAL
FINANCING III, dated as of June 30, 1998 (this "Amendment"), by and
among Northwestern Corporation, a Delaware corporation (formerly known
as Northwestern Public Service Company), as sponsor (the "Sponsor"),
and Merle D. Lewis, Richard R. Hylland and Wilmington Trust Company, a
Delaware banking corporation, as trustees (collectively, the
"Trustees").
WHEREAS, NWPS Capital Financing III (the "Trust") has heretofore
been formed as a business trust under the Delaware Business Trust Act
(12 DEL. C. Section 3801, ET SEQ.) pursuant to a Declaration of Trust
of the Trust, dated as of June 19, 1995 (the "Original Declaration"),
and a Certificate of Trust of the Trust, dated as of June 19, 1995, as
filed in the office of the Secretary of State of the State of Delaware
(the "Secretary of State");
WHEREAS, the Sponsor and the Trustees wish to change the name of
the Trust as set forth below;
WHEREAS, the Sponsor and the Trustees hereby consent to the
adoption of this Amendment; and
WHEREAS, the parties hereto desire to amend the Original
Declaration as set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
AMENDMENTS
1. The name of the Trust is hereby changed from "NWPS Capital
Financing III" to "Northwestern Capital Financing III", such that all
references in the Original Declaration to "NWPS Capital Financing III"
shall be deemed to refer to "Northwestern Capital Financing III" and
all future business of the Trust shall be conducted in such name. The
Trustees are hereby authorized to execute and file a restated
certificate of trust with the Secretary of State to reflect the change
of the name of the Trust.
2. All references to "Northwestern Public Service Company" in
the Original Declaration shall be deemed to refer to "Northwestern
Corporation".
MISCELLANEOUS
1. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon, and shall enure to the benefit of, the parties hereto and their
respective successors and assigns.
<PAGE>
2. FULL FORCE AND EFFECT. Except to the extent modified
hereby, the Original Declaration shall remain in full force and
effect.
3. COUNTERPARTS. This Amendment may be executed in
counterparts, all of which together shall constitute one agreement
binding on all parties hereto, notwithstanding that all such parties
are not signatories to the original or same counterpart.
4. GOVERNING LAW. This Amendment shall be governed by, and
construed under, the laws of the State of Delaware, all rights and
remedies being governed by said laws.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the day and year first above written.
NORTHWESTERN CORPORATION,
as Sponsor
By: /s/ Richard R. Hylland
--------------------------------------
Name: Richard R. Hylland
Title: President and Chief
Operating Officer
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Trustee
By: /s/ Jill K. Morrison
--------------------------------------
Name: Jill K. Morrison
Title: Administrative Account Manager
/s/ Merle D. Lewis
-------------------------------------------
MERLE D. LEWIS, not in his individual
capacity but solely as Trustee
/s/ Richard R. Hylland
-------------------------------------------
RICHARD R. HYLLAND, not in his individual
capacity but solely as Trustee
-2-
EXHIBIT 4(b)(17)
----------------
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NORTHWESTERN CAPITAL FINANCING __
<PAGE>
NORTHWESTERN CAPITAL FINANCING __
Cross-Reference Table for the
Amended and Restated Declaration of Trust
<TABLE>
<CAPTION>
Section of Section of
Trust Indenture Amended and Restated
Act of 1939, as amended Declaration of Trust
------------------------ ----------------------
<S> <C>
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.
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Interpretation and Definitions
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Appointment Event . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . 2
Book Entry Interest . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . 2
Business Trust Act . . . . . . . . . . . . . . . . . 2
Certificate . . . . . . . . . . . . . . . . . . . . 2
Clearing Agency . . . . . . . . . . . . . . . . . . 2
Clearing Agency Participant . . . . . . . . . . . . 3
Code . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . 3
Common Security . . . . . . . . . . . . . . . . . . 3
Common Securities Guarantee . . . . . . . . . . . . 3
Common Security Certificate . . . . . . . . . . . . 3
Covered Person . . . . . . . . . . . . . . . . . . . 3
Debenture Issuer . . . . . . . . . . . . . . . . . . 3
Debenture Trustee . . . . . . . . . . . . . . . . . 3
Debentures . . . . . . . . . . . . . . . . . . . . . 3
Delaware Trustee . . . . . . . . . . . . . . . . . . 3
Definitive Preferred Security Certificates . . . . . 3
Direction . . . . . . . . . . . . . . . . . . . . . 3
Distribution . . . . . . . . . . . . . . . . . . . . 3
DTC . . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . 4
Fiscal Year . . . . . . . . . . . . . . . . . . . . 4
Global Certificate . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . 4
Indemnified Person . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . 4
Investment Company . . . . . . . . . . . . . . . . . 4
Investment Company Act . . . . . . . . . . . . . . . 4
Investment Company Event . . . . . . . . . . . . . . 4
Legal Action . . . . . . . . . . . . . . . . . . . . 4
List of Holders . . . . . . . . . . . . . . . . . . 4
Majority in Liquidation Amount of the Securities . . 4
Ministerial Action . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . 5
Preferred Securities Guarantee . . . . . . . . . . . 5
Preferred Security . . . . . . . . . . . . . . . . . 5
Preferred Security Beneficial Owner . . . . . . . . 5
Preferred Security Certificate . . . . . . . . . . . 6
Property Trustee . . . . . . . . . . . . . . . . . . 6
Property Trustee Account . . . . . . . . . . . . . . 6
iii
<PAGE>
Quorum . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Trustee . . . . . . . . . . . . . . . . . . 6
Related Party . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . 6
Rule 3a-7 . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . 6
Securities Act . . . . . . . . . . . . . . . . . . . 6
66-2/3% in Liquidation Amount of the Securities. . . 6
Special Event . . . . . . . . . . . . . . . . . . . 7
Special Regular Trustee . . . . . . . . . . . . . . 7
Sponsor . . . . . . . . . . . . . . . . . . . . . . 7
Successor Entity . . . . . . . . . . . . . . . . . . 7
Successor Securities . . . . . . . . . . . . . . . . 7
Tax Event . . . . . . . . . . . . . . . . . . . . . 7
10% in Liquidation Amount of the Securities . . . . 7
Treasury Regulations . . . . . . . . . . . . . . . . 8
Trustee; Trustees . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . 8
Underwriting Agreement . . . . . . . . . . . . . . . 8
ARTICLE II
Trust Indenture Act
SECTION 2.1. Trust Indenture Act; Application . . . . . . . . . . 8
SECTION 2.2. Lists of Holders of Securities . . . . . . . . . . . 9
SECTION 2.3 Reports by the Property Trustee . . . . . . . . . . 9
SECTION 2.4 Periodic Reports to Property Trustee . . . . . . . . 9
SECTION 2.5. Evidence of Compliance with Conditions Precedent . . 9
SECTION 2.6. Events of Default; Waiver . . . . . . . . . . . . . 10
SECTION 2.7. Event of Default; Notice . . . . . . . . . . . . . . 11
ARTICLE III
Organization
SECTION 3.1. Name . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.2. Office . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.3. Purpose . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.4. Authority . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.5. Title to Property of the Trust . . . . . . . . . . . 13
SECTION 3.6. Powers and Duties of the Regular Trustees . . . . . 13
iv
<PAGE>
SECTION 3.7. Prohibition of Actions by the Trust and the
Trustees . . . . . . . . . . . . . . . . . . . 16
SECTION 3.8. Powers and Duties of the Property Trustee . . . . . 17
SECTION 3.9. Certain Duties and Responsibilities of the
Property Trustee . . . . . . . . . . . . . . . 20
SECTION 3.10. Certain Rights of Property Trustee . . . . . . . . . 22
SECTION 3.11. Delaware Trustee . . . . . . . . . . . . . . . . . . 24
SECTION 3.12. Execution of Documents . . . . . . . . . . . . . . . 25
SECTION 3.13. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . 25
SECTION 3.14. Duration of Trust . . . . . . . . . . . . . . . . . 25
SECTION 3.15. Mergers . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
Sponsor
SECTION 4.1. Sponsor's Purchase of Common Securities . . . . . . 27
SECTION 4.2. Responsibilities of the Sponsor . . . . . . . . . . 27
SECTION 4.3. Expenses . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE V
Trustees
SECTION 5.1. Number of Trustees . . . . . . . . . . . . . . . . . 28
SECTION 5.2. Delaware Trustee . . . . . . . . . . . . . . . . . . 29
SECTION 5.3. Property Trustee; Eligibility . . . . . . . . . . . 29
SECTION 5.4. Qualifications of Regular Trustees and
Delaware Trustee Generally . . . . . . . . . . 30
SECTION 5.5. Initial Trustees . . . . . . . . . . . . . . . . . . 31
SECTION 5.6. Appointment, Removal and Resignation
of Trustees . . . . . . . . . . . . . . . . . . 31
SECTION 5.7. Vacancies Among Trustees . . . . . . . . . . . . . . 33
SECTION 5.8. Effect of Vacancies . . . . . . . . . . . . . . . . 34
SECTION 5.9 Meetings . . . . . . . . . . . . . . . . . . . . . . 34
v
<PAGE>
SECTION 5.10. Delegation of Power . . . . . . . . . . . . . . . . 34
ARTICLE VI
Distributions
SECTION 6.1. Distributions . . . . . . . . . . . . . . . . . . . 35
ARTICLE VII
Issuance of Securities
SECTION 7.1. General Provisions Regarding Securities . . . . . . 35
ARTICLE VIII
Termination of Trust
SECTION 8.1. Termination of Trust . . . . . . . . . . . . . . . . 36
ARTICLE IX
Transfer of Securities
SECTION 9.1. Transfer of Securities . . . . . . . . . . . . . . . 37
SECTION 9.2. Transfer of Certificates . . . . . . . . . . . . . . 38
SECTION 9.3. Deemed Security Holders . . . . . . . . . . . . . . 38
SECTION 9.4. Book Entry Interests . . . . . . . . . . . . . . . . 39
SECTION 9.5. Notices to Clearing Agency . . . . . . . . . . . . . 39
SECTION 9.6. Appointment of Successor Clearing Agency . . . . . . 40
SECTION 9.7. Definitive Preferred Security Certificates . . . . . 40
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . . . . . . 41
ARTICLE X
Limitation of Liability of Holders
of Securities, Trustees and Others
SECTION 10.1. Liability . . . . . . . . . . . . . . . . . . . . . 41
SECTION 10.2. Exculpation . . . . . . . . . . . . . . . . . . . . 42
SECTION 10.3. Fiduciary Duty . . . . . . . . . . . . . . . . . . . 42
SECTION 10.4. Indemnification . . . . . . . . . . . . . . . . . . 43
SECTION 10.5. Outside Business . . . . . . . . . . . . . . . . . . 44
vi
<PAGE>
ARTICLE XI
Accounting
SECTION 11.1. Fiscal Year . . . . . . . . . . . . . . . . . . . . 45
SECTION 11.2. Certain Accounting Matters . . . . . . . . . . . . . 45
SECTION 11.3. Banking . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11.4. Withholding . . . . . . . . . . . . . . . . . . . . 46
ARTICLE XII
Amendments and Meetings
SECTION 12.1. Amendments . . . . . . . . . . . . . . . . . . . . . 46
SECTION 12.2. Meetings of the Holders of Securities; Action
by Written Consent . . . . . . . . . . . . . . 48
ARTICLE XIII
Representations of Property Trustee
SECTION 13.1. Representations and Warranties of Property
Trustee . . . . . . . . . . . . . . . . . . . . 50
ARTICLE XIV
Miscellaneous
SECTION 14.1. Notices . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 14.2. Governing Law . . . . . . . . . . . . . . . . . . . 52
SECTION 14.3. Intention of the Parties . . . . . . . . . . . . . . 52
SECTION 14.4 Headings . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 14.5 Successors and Assigns . . . . . . . . . . . . . . . 52
SECTION 14.6 Partial Enforceability . . . . . . . . . . . . . . . 52
SECTION 14.7 Counterparts . . . . . . . . . . . . . . . . . . . . 52
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . 53
EXHIBIT A: Form of Terms of _____% Trust Preferred Capital
Securities and _____% Trust Common Capital Securities
EXHIBIT B: Specimen of Debenture
EXHIBIT C: Underwriting Agreement
vii
<PAGE>
FORM
OF
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NORTHWESTERN CAPITAL FINANCING _
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated
and effective as of _______________, ____, 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 by 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 ____________ (the
"Original Declaration"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on ________________ 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).
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original
Declaration; and
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.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
(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;
<PAGE>
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended
from time to time;
(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 of the Securities Act or any successor rule
thereunder.
"Appointment Event" means an event defined in the terms of the
Securities, as set forth in Exhibit A, which entitles the Holders of a
Majority in liquidation amount of the Preferred Securities to appoint
a Special Regular Trustee.
"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 the
name of a nominee of that organization, shall be registered a Global
Certificate and which shall undertake to effect book entry transfers
and pledges of the Preferred Securities.
2
<PAGE>
"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.
"Common Securities Guarantee" means the guarantee agreement to be
dated as of __________ 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 "___% Junior
Subordinated Debentures due ____" 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.
3
<PAGE>
"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.
"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 trustee, and the
indenture supplemental thereto 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.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act, that as a
result of the occurrence of a change in law or regulation by any
legislative body, court, governmental agency or regulatory authority
(a "Change in 1940 Act Law"), the Trust is or will be considered an
"investment company" which is required to be registered under the 1940
Act, which Change in 1940 Act Law becomes effective on or after the
date of the Prospectus Supplement relating to the Debentures. In case
of any uncertainty regarding an Investment Company Event, the good
faith determination of the Regular Trustees, based on the advice of
counsel, shall be conclusive.
"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 Holder(s) of Securities voting together as a single
class or, as the context may require, a vote by Holder(s) of Preferred
Securities or Holder(s) of Common Securities voting separately as a
class, representing a majority of the liquidation amount (including
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the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Securities of such
class.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Exhibit A.
"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 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
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.
"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 __________ 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).
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"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Annex I to Exhibit A.
"Pricing Agreement" means the pricing agreement between the Trust, the
Debenture Issuer, and the underwriters designated by the Regular
Trustees with respect to the offer and sale of the Preferred
Securities.
"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).
"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.
"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 Holder(s) of Securities voting together as a
single class or, as the context may require, a vote by Holder(s) of
Preferred Securities or Holder(s) of Common Securities 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 accrued and unpaid Distributions to the
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date upon which the voting percentages are determined) of all
Securities of such class.
"Special Event" means an Investment Company Event or a Tax Event.
"Special Regular Trustee" means a Regular Trustee appointed by the
Holders of a Majority in liquidation amount of the Preferred
Securities in accordance with Section 5.6(a)(ii)(B).
"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.
"Tax Event" means that the Regular Trustees shall have received an
opinion of nationally recognized independent tax counsel experienced
in such matters to the effect that, as a result of (a) 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, (b) any
amendment to or change in an interpretation or application of any such
laws or regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of any
legislation and the publication of any judicial decision or regulatory
determination on or after the date of the Prospectus Supplement
relating to the Debentures), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations
that differs from the theretofore generally accepted position, or (d)
any action taken by any governmental agency or regulatory authority,
which amendment or change is enacted, promulgated or effective, or
which interpretation or pronouncement is issued or announced, or which
action is taken, in each case on or after the date of the Prospectus
Supplement relating to the Debentures, there is more than an
insubstantial risk that (i) the Trust is or will be subject to United
States federal income tax with respect to income accrued or received
on the Debentures, (ii) interest payable to the Trust on the
Debentures is not or will not be deductible by the Debenture Issuer
for United States federal income tax purposes or (iii) the Trust is or
will be subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"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 Holder(s) of Securities voting together as
a single class or, as the context may require, the vote by Holder(s)
of Preferred Securities or Holder(s) of Common Securities, voting
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separately as a class, representing 10% of the liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued 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.
"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 Preferred Securities in the form of Exhibit C.
ARTICLE II
TRUST INDENTURE ACT
SECTION 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; and
(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.
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SECTION 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 ("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 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
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.
SECTION 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.
SECTION 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 (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.
Each of the Sponsor, the Debenture Issuer and the Regular Trustees on
behalf of the Trust shall provide to the Property Trustee such
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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.
SECTION 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 such
proportion thereof in liquidation amount as represents
the relevant Super Majority of the aggregate principal
amount of the Preferred Securities 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:
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(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 is not waivable; or
(ii) which requires the consent or vote of a Super Majority
to be waived, 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 Events of Default under the
Declaration may only be waived by the vote of the
Holders of at least the proportion in liquidation
amount of the Preferred Securities as represents the
relevant Super Majority of the aggregate principal
amount of the Debentures outstanding; provided that,
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 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.
SECTION 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
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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 6.01(a)(1) and 6.01(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.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Northwestern Capital Financing __", as such name
may be modified from time to time by the Regular Trustees following
written notice to the Holders of Securities. The Trust's activities
may be conducted under the name of the Trust or any other name deemed
advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Northwestern
Corporation, 33 Third Street, S.E., Huron, South Dakota 57350. On ten
Business Days written notice to the Holders of Securities, the Regular
Trustees may designate another principal office. The name of the
registered agent and office of the Trust in the State of Delaware is
Wilmington Trust Company, Rodney Square North, 1100 Market Street,
Wilmington, Delaware 19890. At any time, the Regular Trustees may
designate another registered agent and/or office.
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SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale 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.
SECTION 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.
SECTION 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.
SECTION 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 Securities shall be limited to a one-time,
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simultaneous issuance of both Preferred Securities and
Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, to:
(i) execute and file with the Commission the
registration statement on Form S-3 prepared by the
Sponsor, including any amendments thereto,
pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the
Sponsor to be necessary in order to qualify or
register all or part of the Preferred Securities
in any State in which the Sponsor has determined
to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by the
Sponsor, 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;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any
amendments thereto, prepared by the Sponsor
relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange
Act; and
(v) execute and enter into the Underwriting Agreement
and Pricing Agreement providing for the sale of
the Preferred Securities;
(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; provided that the Regular Trustees shall consult with
the Debenture Issuer, the Sponsor and the Property Trustee
before taking or refraining from taking any Ministerial
Action in relation to a Tax Event;
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(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;
(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 extend the scheduled maturity date
on the Debentures;
(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
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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:
(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.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) 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:
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(i) invest any proceeds received by the Trust from
holding the Debentures but shall distribute all
such proceeds to Holders of Securities pursuant to
the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(v) 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;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest
in, the Trust other than the Securities; or
(vii) (A) direct the time, method and place of
exercising any trust or power conferred upon the
Debenture Trustee with respect to the Debentures,
(B) waive any past default that is waivable under
Section 513 of the Indenture, (C) exercise any
right to rescind or annul any declaration that the
principal of all the Debentures shall be due and
payable or (D) 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 more than an
insubstantial risk that for United States federal
income tax purposes the Trust will be
characterized as an association taxable as a
corporation or a partnership and that each Holder
of Securities will not be treated as owning an
undivided beneficial interest in the Debentures.
SECTION 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
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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 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 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 upon the occurrence of certain special
events (as may be defined in the terms of the
Securities) arising from a change in law or a
change in legal interpretation or other specified
circumstances pursuant to the terms of the
Securities;
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(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 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 Holders of the Securities, enforce its rights
as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of such 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 any such Paying Agent shall
comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any
time and a successor Paying Agent or additional Paying
Agents may be appointed at any time by the Property Trustee;
and
(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.
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SECTION 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 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;
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(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 ground 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 except as it
may otherwise agree with the Sponsor. Money held
by the Property Trustee need not be segregated
from other funds held by it except in relation to
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the Property Trustee Account maintained by the
Property Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by law;
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees
or the Sponsors 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.
SECTION 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 registration
thereof);
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(v) the Property Trustee may consult with counsel and
the advice or opinion of such counsel and the
experts with respect to legal matters or advice
within the scope of such experts' area of
expertise 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 such
counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its
employees. The Property Trustee shall have the
right at any time to seek instructions concerning
the administration 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;
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(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
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.
SECTION 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
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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.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, a majority of or,
if there are only two, both of the Regular Trustees are 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; provided that, any listing application prepared by the Sponsor
referred to in Section 3.6(b)(iii) may be executed by any Regular
Trustee.
SECTION 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.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall have existence for 55 years from the date of the
Prospectus Supplement relating to the Debentures.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, 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, 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 Preferred Securities; or
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(B) substitutes for the Preferred Securities
other 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;
(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
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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; and
(c) notwithstanding Section 3.15(b), the Trust shall, except
with the consent of Holders of 100% in liquidation amount of
the Securities, not consolidate, amalgamate, merge with or
into, or be replaced by any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity for
United States federal income tax purposes to be classified
as an association taxable as a corporation or a partnership
and each Holder of the Securities not to be treated as
owning an undivided beneficial interest in the Debentures.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On ___________________ 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. The purchase price paid for the Common Securities shall
constitute a contribution to the capital of the Trust and shall not
constitute a loan to the Trust.
SECTION 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:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the
Preferred Securities, including any amendments thereto;
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(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 take any and all such acts, other than
actions which must be taken by the Trust, and advise the
Trust of actions it must take, and prepare for execution and
filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(c) to prepare for filing by the Trust 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 for filing by the Trust 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 the Underwriting Agreement and
Pricing 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 all) 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 any
Special Regular Trustee, 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.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees shall initially be three (3), and:
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(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the
number of Trustees; and
(b) after the issuance of any Securities:
(i) and except as provided in Sections 5.1(b)(ii) and
5.6(a)(ii)(B) with respect to the Special Regular
Trustee, 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; and
(ii) the number of Trustees shall be increased
automatically by one (1) if an Appointment Event
has occurred and is continuing and the Holders of
a Majority in liquidation amount of the Preferred
Securities appoint a Special Regular Trustee in
accordance with Section 5.6,
provided that in any case, the number of Trustees shall be at least
three (3) (the majority of which shall be Regular Trustees), and if
there are only three Trustees:
(c) the Trustee that acts as the Property Trustee shall also act
as the Delaware Trustee pursuant to Section 5.2.
SECTION 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.
SECTION 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;
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(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 ($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
Holder 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.
SECTION 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
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person who is at least 21 years of age or a legal entity that shall
act through one or more Authorized Officers.
SECTION 5.5 Initial Trustees.
The initial Regular Trustees shall be:
Merle D. Lewis
33 Third Street SE
P.O. Box 1318
Huron, South Dakota 57350-1318
Richard R. Hylland
125 South Dakota Avenue
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
who shall also act as Property Trustee.
SECTION 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;
(A) other than in respect to a Special Regular
Trustee 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; and
(B) if an Appointment Event has occurred and is
continuing, one (1) additional Regular
Trustee (the "Special Regular Trustee") may
be appointed by 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 and such Special Regular Trustee
may only be removed (otherwise than by the
operation of Section 5.6(c)), by vote of the
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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) (i) The Trustee that acts as Property Trustee shall
not be removed in accordance with Section 5.6(a)
until 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) the Trustee that acts as Delaware Trustee shall
not be removed in accordance with this Section
5.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 (a "Successor Delaware
Trustee") 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, provided that a Special Regular
Trustee shall only hold office while an Appointment Event is
continuing and shall cease to hold office immediately after
the Appointment Event pursuant to which the Special Regular
Trustee was appointed and all other Appointment Events cease
to be continuing. 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
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
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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; and
(iii) no such resignation of a Special Regular Trustee
shall be effective until the 60th day following
delivery of the instrument of resignation of the
Special Regular Trustee to the Sponsor and the
Trust or such later date specified in such
instrument during which period the Holders of the
Preferred Securities shall have the right to
appoint a successor Special Regular Trustee as
provided in this Section 5.6; and
(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 such notice to be given, if any, as it may
deem proper and prescribe, appoint a Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
SECTION 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.
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SECTION 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 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.
SECTION 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.
SECTION 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 registration statement or amendment thereto
filed with the Commission, or making any other 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
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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.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the applicable
terms of the relevant Holder's 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 (as defined in the Indenture))
and Additional Interest (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.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust 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 have 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
the Regular Trustees (or if there are more than two Regular
Trustees by any two of the Regular Trustees). Such
signatures may be the manual or facsimile signatures of the
present or any future Regular Trustee. Typographical and
other minor errors or defects in any such reproduction of
any such signature shall not affect the validity of any
Certificate. In case any Regular Trustee of the Trust who
shall have signed any of the Securities shall cease to be
such Regular Trustee before the Certificates so signed shall
be delivered by the Trust, such Certificates nevertheless
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may be delivered as though the Person who signed such
Certificates had not ceased to be such 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,
although at the date of the execution and delivery of the
Declaration any such Person was not such a Regular Trustee.
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 of any stock exchange on which
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.
(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.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Holder of the Common
Securities, the Sponsor or the Debenture Issuer;
(ii) upon 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 filing of a certificate of
cancellation with respect to the Trust or 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
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date of revocation without a reinstatement
thereof;
(iii) upon the entry of a decree of judicial dissolution
of the Holder of the Common Securities, the
Sponsor, the Debenture Issuer or the Trust;
(iv) when all of the Securities shall have been called
for redemption and the amounts necessary for
redemption thereof shall have been paid to the
Holders in accordance with the terms of the
Securities;
(v) upon the occurrence and continuation of a Special
Event pursuant to which the Trust shall have been
dissolved in accordance with the terms of the
Securities and all of the Debentures endorsed
thereon shall have been distributed to the Holders
of Securities in exchange for all of the
Securities; or
(vi) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the
Sponsor; and
(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; and
(c) the provisions of Section 3.9 and Article X shall survive
the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 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. 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 IX, Preferred Securities shall be
freely transferable; and
(c) subject to this Article IX, 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
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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.
SECTION 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
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.
SECTION 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.
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SECTION 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 and receive
and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants. DTC will
make book entry transfers among the Clearing Agency
Participants.
SECTION 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.
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SECTION 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.
SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred
Securities and a successor Clearing Agency is not appointed
within 90 days after such discontinuance pursuant to Section
9.6; or
(b) the Regular Trustees elect after consultation with the
Sponsor to terminate the book entry system through the
Clearing Agency with respect to the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates shall be prepared
by the Regular Trustees on behalf of the Trust with respect
to such Preferred Securities; and
(d) upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the
Regular Trustees shall cause Definitive 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. 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.
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SECTION 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.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES AND OTHERS
SECTION 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; and
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the
Trust or otherwise; and
(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
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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.
SECTION 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;
and
(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
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.
SECTION 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
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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; and
(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, 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.
SECTION 10.4 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless each Indemnified
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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; and
(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).
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Debenture Issuer, the Delaware
Trustee and 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 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.
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ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 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 of the Holders 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 of the Holders of Securities any United
States federal income tax information statement required by
the Code, containing such information with regard to the
Securities held by each 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; and
(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.
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SECTION 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.
SECTION 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
overwithholding, 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.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 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 a majority of the Regular Trustees);
provided, however, that:
(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
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(A) cause the Trust to be characterized for
purposes of United States federal income
taxation as an association taxable as a
corporation or a partnership and each Holder
of Securities not to be treated as owning an
undivided beneficial interest in the
Debentures;
(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 materially adversely affect the rights,
privileges or preferences of any Holder of
Securities 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 IV 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 V 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 Special Regular Trustee, in which
case such amendment may only be made in
accordance with the terms of the Preferred
Securities).
(b) Notwithstanding Section 12.1(a)(ii), this Declaration may be
amended without the consent of the Holders of the Securities
to:
(i) cure any ambiguity;
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(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.
SECTION 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 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 the Preferred Securities are listed or admitted for
trading. The Regular Trustees shall call a meeting of the
Holders of such class, 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 calls in a writing 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 calling 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; and
(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) 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. 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 the
Preferred Securities are listed or admitted for
trading, such vote, consent or approval may be
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given at a meeting of the Holders of Securities.
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; and
(iv) unless the Business Trust Act, this Declaration,
the terms of the Securities or the listing rules
of any stock exchange on which the Preferred
Securities are then listed or trading otherwise
provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions
relating to meetings of 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
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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.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
SECTION 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.
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ARTICLE XIV
MISCELLANEOUS
SECTION 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 __
125 South Dakota Avenue
Suite 1100
Sioux Falls, South Dakota 57104
Attention: Daniel K. Newell
(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 South 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.
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SECTION 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.
SECTION 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, the
Trust be characterized 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.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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.
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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
By:_____________________________________
Name: Daniel K. Newell
Title: Vice President - Finance and
Chief Financial Officer
NORTHWESTERN CAPITAL FINANCING __
By:_____________________________________
Merle D. Lewis, as Trustee
By:__________________________________________
Richard R. Hylland, as Trustee
WILMINGTON TRUST COMPANY
as Delaware Trustee and Property Trustee
By:__________________________________________
Name:
Title:
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EXHIBIT A
TERMS OF SECURITIES
TERMS OF
_____% TRUST PREFERRED CAPITAL SECURITIES
_____% TRUST COMMON CAPITAL SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of __________, ___ (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." Preferred Securities of the Trust
with an aggregate liquidation amount with respect to the
assets of the Trust of $_____ million ($__________) 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 "_____% 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." Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of
the Trust of $_____ million ($___________) 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 "_____% 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 _____% (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
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Property Trustee. Distributions in arrears for more than
one quarter will bear interest thereon compounded quarterly
at the Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such
periodic cash distributions and any such interest 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 for which
Distributions are computed, Distributions will be computed
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
accrue from __________, ____ and will be payable quarterly
in arrears, on March 31, June 30, September 30, and December
31 of each year, commencing on __________, ____, except as
otherwise described below. 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 (each an "Extension Period") and, as a consequence
of such Extension, Distributions will also be deferred.
Despite such deferral, quarterly Distributions will continue
to accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate compounded quarterly
during any such Extension Period. 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.
Payments of accrued Distributions will be payable 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
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Depository Trust Company" in the Prospectus Supplement dated
__________, ____, to the Prospectus dated __________, 1998
(together, the "Prospectus"), of the Trust included in the
Registration Statement on Form S-3 of the Sponsor, the
Debenture Issuer 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 selected by the
Regular Trustees, which dates shall be at least one Business
Day but less than 60 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.
In the event of any voluntary or involuntary dissolution, winding-up
or termination of the Trust, the Holders of the Securities on the date
of the dissolution, winding-up or termination, as the case may be,
will be entitled to receive out of the assets of the Trust available
for distribution to Holders of Securities after satisfaction of
liabilities of creditors of the Trust an amount equal to the aggregate
of the stated liquidation amount of $25 per Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"), unless, in connection with such
dissolution, winding up or termination, winding-up or termination,
Debentures in an aggregate principal amount equal to the aggregate
stated liquidation amount of such Securities, with an interest rate
equal to the Coupon Rate of, and bearing accrued and unpaid interest
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in an amount equal to the accrued and unpaid Distributions on, such
Securities, shall be distributed on a Pro Rata basis to the Holders of
the Securities in exchange for such Securities.
If, upon any such dissolution, winding-up or termination 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.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in part,
whether at maturity or upon redemption, the proceeds from
such repayment or payment 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 accrued 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(f)(ii) below.
(c) If a Tax Event (as defined below) or an Investment Company
Event (as defined below) (each, a "Special Event"), shall
occur and be continuing, the Regular Trustees shall dissolve
the Trust except in the limited circumstances described
below, and, after satisfaction of liabilities to creditors
of the Trust, cause Debentures held by the Property Trustee,
having an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate
identical to the Coupon Rate of, and accrued and unpaid
interest equal to accrued and unpaid Distributions on and
having the same record date for payment as 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, within 90 days following the occurrence of such
Special Event (the "90-Day Period"); provided, however, that
in the case of the occurrence of a Tax Event, such
dissolution and distribution shall be conditioned on the
Regular Trustees' receipt of an opinion of a nationally
recognized independent tax counsel experienced in such
matters (a "No Recognition Opinion"), which opinion may rely
on published revenue rulings of the Internal Revenue
Service, to the effect that the Holders of the Securities
will not recognize any gain or loss for United States
federal income tax purposes as a result of the dissolution
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of the Trust and the distribution of Debentures; and
provided, further, that, if at the time there is available
to the Trust the opportunity to eliminate, within the 90-Day
Period, the Special Event by taking some ministerial action,
such as filing a form or making an election or pursuing some
other similar reasonable measure that has no adverse effect
on the Trust, the Debenture Issuer, the Sponsor or the
Holders of the Securities ("Ministerial Action"), the Trust
will pursue such Ministerial Action in lieu of dissolution
and distribution as described therein. Furthermore, if in
the case of the occurrence of a Tax Event, after receipt of
a Dissolution Tax Opinion (as defined below) by the Regular
Trustees (i) the Debenture Issuer has received an opinion (a
"Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as
a result of a Tax Event, there is more than an insubstantial
risk that the Debenture Issuer would be precluded from
deducting the interest on the Debentures for United States
federal income tax purposes even if the Debentures were
distributed to the Holders of Securities in liquidation of
such Holders' interests in the Trust as described in this
paragraph 4(c), or (ii) the Regular Trustees shall have been
informed by such tax counsel that a No Recognition Opinion
cannot be delivered to the Trust, the Debenture Issuer shall
have the right at any time, upon not less than 30 nor more
than 60 days notice, to redeem the Debentures in whole or in
part for cash within 90 days following the occurrence of
such Tax Event, and, following such redemption, Securities
with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed shall be
redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if at the time there is
available to the Trust the opportunity to eliminate, within
such 90-day period, the Tax Event by taking some Ministerial
Action, the Trust or the Debenture Issuer will pursue such
Ministerial Action in lieu of redemption.
"Tax Event" means that the Regular Trustees shall have
received an opinion of a nationally recognized independent
tax counsel experienced in such matters (a "Dissolution Tax
Opinion") to the effect that on or after the date of the
Prospectus Supplement, as a result of (a) 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, (b) any amendment to or change in an
interpretation or application of any such laws or
regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of
any legislation and the publication of any judicial decision
or regulatory determination on or after the date of the
Prospectus relating to the Debentures), (c) any
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interpretation or pronouncement that provides for a position
with respect to such laws or regulations that differs from
the theretofore generally accepted position, or (d) any
action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated
or effective, or which interpretation or pronouncement is
issued or announced, or which action is taken, in each case
on or after the date of the Prospectus relating to the
Debentures, there is more than an insubstantial risk that
(i) the Trust is or will be within 90 days of the date
thereof, subject to United States federal income tax with
respect to interest accrued or received on the Debentures,
(ii) the Trust is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of taxes,
duties or other governmental charges, or (iii) interest
payable by the Debenture Issuer to the Trust on the
Debentures is not, or within 90 days of the date thereof
will not be, deductible, in whole or in part, by the
Debenture Issuer for United States federal income tax
purposes.
"Investment Company Event" means that the Regular Trustees
shall have received an opinion of nationally recognized
independent counsel experienced in practice under the
Investment Company Act of 1940, as amended (the "1940 Act"),
that as a result of the occurrence of a change in law or
regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"),
the Trust is or will be considered an "investment company"
which is required to be registered under the 1940 Act, which
Change in 1940 Act Law becomes effective on or after the
date of the Prospectus relating to the Debentures. In case
of any uncertainty regarding an Investment Company Event,
the good faith determination of the Regular Trustees, based
on the advice of counsel, shall be conclusive.
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 (the "Depository") 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 and any certificates representing Securities,
except for certificates representing Preferred Securities
held by the Depository or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent
beneficial interests in the Debentures having an aggregate
principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the Coupon
Rate of, and accrued and unpaid interest equal to accrued
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and unpaid Distributions, on such Securities until such
certificates are presented to the Debenture Issuer or its
agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have
been paid on all Securities for all quarterly Distribution
periods terminating on or before the date of redemption.
(e) If the Debentures are distributed to 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
immediately prior to the distribution of the Debentures.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the
Securities (a "Redemption/Distribution Notice")
will be given by the Trust by mail to each Holder
of Securities to be redeemed or exchanged not
fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof
which, in the case of a redemption, will be the
date fixed for redemption of the Debentures. For
purposes of the calculation of the date of
redemption or exchange and the dates on which
notices are given pursuant to this paragraph
4(f)(i), a Redemption/Distribution 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/Distribution 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/Distribution Notice or in the mailing
of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to
be redeemed shall be redeemed Pro Rata from each
Holder of Preferred Securities, it being
understood that, in respect of Preferred
Securities registered in the name of and held of
record by the Depository (or any successor
Clearing Agency) or any nominee, the distribution
of the proceeds of such redemption will be made to
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such Clearing Agency Participant (or Person on
whose behalf such nominee holds such Securities)
in accordance with the procedures applied by such
offering or nominee.
(iii) If Securities are to be redeemed and the Trust
gives a Redemption/Distribution 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 the
Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity
of the Debentures, the Property Trustee will
deposit irrevocably with the Depositary (or
successor Clearing Agency) funds sufficient to pay
the applicable Redemption Price with respect to
the Preferred Securities and will give the
Depository 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/
Distribution Notice shall have been given and
funds deposited as required, if applicable, 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 accrue
on the Securities so called for redemption and all
rights of 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
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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 accrue 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/Distribution Notices shall be sent by
the Regular Trustees on behalf of the Trust to (A)
in respect of the Preferred Securities, the
Depositary or its nominee (or any successor
Clearing Agency or its nominee) if the Global
Certificates have been issued or, if Definitive
Preferred Security Certificates have been issued,
to the Holder thereof, and (B) in respect of the
Common Securities to the Holder thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States
federal securities laws), provided the acquiror is
not the Holder of the Common Securities or the
obligor under the Indenture, the Sponsor or any of
its subsidiaries may at any time and from time to
time purchase outstanding Preferred Securities by
tender, in the open market or by private
agreement.
5. Voting Rights -- Preferred Securities.
(a) Except as provided under paragraphs 5(b) and 7 and as
otherwise required by law and the Declaration, the Holders
of the Preferred Securities will have no voting rights.
(b) If (i) the Trust fails to make Distributions in full on the
Preferred Securities for six consecutive quarterly
Distribution periods, or (ii) an Event of Default occurs and
is continuing (each of (i) and (ii) being an "Appointment
Event"), then the Holders of the Preferred Securities,
acting as a single class, will be entitled by the vote of a
Majority in liquidation amount of the Preferred Securities
to appoint a Special Regular Trustee in accordance with
A-9
<PAGE>
Section 5.6(a)(ii)(B) of the Declaration. Any Holder of
Preferred Securities (other than the Sponsor, or any Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Sponsor) will be
entitled to nominate any Person to be appointed as Special
Regular Trustee. For purposes of determining whether the
Trust has failed to make Distributions in full for six
consecutive quarterly Distribution periods, Distributions
shall be deemed to remain in arrears, notwithstanding any
payments in respect thereof, until full cumulative
Distributions have been or contemporaneously are paid with
respect to all quarterly Distribution periods terminating on
or prior to the date of payment of such cumulative
Distributions. Not later than 30 days after such right to
appoint a Special Regular Trustee arises, the Regular
Trustees will convene a meeting for the purpose of
appointing a Special Regular Trustee. If the Regular
Trustees fail to convene such meeting within such 30-day
period, the Holders of 10% in liquidation amount of the
Preferred Securities will be entitled to convene such
meeting in accordance with Section 12.2 of the Declaration.
The record date for such meeting will be the close of
business on the Business Day that is one Business Day before
the day on which notice of the meeting is sent to the
Holders. The provisions of the Declaration relating to the
convening and conduct of the meetings of the Holders will
apply with respect to any such meeting.
A Special Regular Trustee may be removed without cause at
any time by vote of the Holders of a Majority in liquidation
amount of the Preferred Securities at a meeting of the
Holders of the Preferred Securities in accordance with
Section 5.6(a)(ii)(B) of the Declaration. The Holders of
10% in liquidation amount of the Preferred Securities will
be entitled to convene such a meeting in accordance with
Section 12.2 of the Declaration. The record date for such
meeting will be the close of business on the Business Day
which is one Business Day before the day on which the notice
of meeting is sent to Holders. Notwithstanding the
appointment of a Special Regular Trustee, the Debenture
Issuer shall retain all rights under the Indenture,
including the right to extend the interest payment period on
the Debentures.
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
A-10
<PAGE>
Property Trustee, or exercising any trust or power conferred
on the Property Trustee with respect to the Debentures, (ii)
waive any past default and its consequences 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 greater than a
majority in principal amount of Debentures affected thereby
(a "Super Majority"), the Property Trustee may only give
such consent or take such action at the direction of the
Holders of at least the proportion in liquidation amount of
the Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the
Debentures 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 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 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,
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 without
first instituting a legal proceeding against the Property
Trustee or any other Person.
Any approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred
Securities convened for such purpose, at a meeting of all of
the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice
of any meeting at which Holders of 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.
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<PAGE>
No vote or consent of the Holders of the Preferred
Securities will be required for the Trust to redeem and
cancel Preferred Securities or to distribute the Debentures
in accordance with the Declaration and the terms of the
Securities.
Notwithstanding that Holders of 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 V 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 a Special Regular Trustee.
(c) Subject to Section 2.6 of the Declaration and only after the
Event of Default with respect to the Preferred Securities
have 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, 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) waive
any past default and its consequences that is waivable under
Section 606 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 or action under the Indenture would
require the consent or act of the Holders of a Super
Majority, the Property Trustee may only give such consent or
take such action at the direction of the Holders of at least
the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of
the aggregate principal amount of the Debentures
A-12
<PAGE>
outstanding. 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
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 Holders of Common Securities
may be given at a separate meeting of Holders of Common
Securities convened for such purpose, at a meeting of all of
the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice
of any meeting at which 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 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, if any proposed amendment to the Declaration
provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would materially adversely
A-13
<PAGE>
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 or
termination of the Trust, other than as described in Section
8.1 of the Declaration, then the Holders of outstanding
Securities as a 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, however, that,
the rights of Holders of Preferred Securities under Article
V of the Declaration to appoint, remove or replace a Special
Regular Trustee shall not be amended without the consent of
each Holder of Preferred Securities, provided, further
however, 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.
(b) In the event the consent of the Property Trustee as the
holder of the Debentures and the Preferred Securities
Guarantee is required under the Indenture with respect to
any amendment, modification or termination on the Indenture,
the Debentures or the Preferred Securities Guarantee, 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 the
Holders of a Super Majority, the Property Trustee may only
give such consent at the direction of the Holders of at
least the proportion in liquidation amount of the Securities
which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding;
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
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<PAGE>
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 under the Indenture 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 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 under the Indenture in respect of
the Debentures held by the Property Trustee, 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 for quotation on the New York Stock
Exchange Limited.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and 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 a Holder without charge on
written request to the Trust at its principal place of business.
A-15
<PAGE>
These terms and the rights of the parties herewith 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-16
<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 "Depositary") or a nominee of the
Depositary. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than the
Depositary 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 the
Depositary to a nominee of the Depository or by a nominee of the
Depository to the Depositary or another nominee of the Depositary) 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. __________
Certificate Evidencing Preferred Securities
of
NORTHWESTERN CAPITAL FINANCING __
Preferred Securities.
(liquidation amount $25 per Preferred Security)
NORTHWESTERN CAPITAL FINANCING __, 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 _____% 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
A-17
<PAGE>
the Amended and Restated Declaration of Trust of the Trust dated as of
___________, ____, 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 meaning 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 a 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 indirect beneficial ownership in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this day
of __________, ____.
NORTHWESTERN CAPITAL FINANCING __
By:______________________________________________
as Trustee
By:______________________________________________
as Trustee
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
_____________________________________________________________________
A-18
<PAGE>
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-19
<PAGE>
ANNEX II
Certificate Number Number of Common
Securities
____________ ____________
Certificate Evidencing Common Securities
of
NORTHWESTERN CAPITAL FINANCING __
Common Securities.
(liquidation amount $25 per Common Security)
NORTHWESTERN CAPITAL FINANCING __, 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 _____% Trust Common Capital
Securities (liquidation amount $25 per Common Security) (the "Common
Securities"). The Common 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 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 ___________, ____, 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 meaning
given them in 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 a 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 indirect beneficial ownership in the
Debentures.
A-20
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this day
of ___________, ____.
NORTHWESTERN CAPITAL FINANCING __
By:_____________________________________
as Trustee
By:_____________________________________
as Trustee
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-21
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE>
EXHIBIT C
UNDERWRITING AGREEMENT
C-1
EXHIBIT 4(b)(18)
----------------
PREFERRED SECURITIES GUARANTEE AGREEMENT
<PAGE>
NORTHWESTERN CAPITAL FINANCING __
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
ARTICLE I
Definitions and Interpretation
PAGE
SECTION 1.1. Definitions and Interpretation . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Common Securities Guarantee Agreement . . . . . . . 2
Common Securities . . . . . . . . . . . . . . . . . 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 Trust . . . . . . . . . . . . . 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 . . . . . . . . . . . 4
SECTION 2.3. Reports by the Preferred Trust Guarantee . . . . . . 5
SECTION 2.4. Periodic Reports to Preferred Guarantee Trustee . . 5
SECTION 2.5. Evidence of Compliance with Conditions Precedent . . 5
SECTION 2.6. Event of Default; Waiver . . . . . . . . . . . . . . 5
SECTION 2.7. Event of Default; Notice . . . . . . . . . . . . . . 6
SECTION 2.8. Conflicting Interests . . . . . . . . . . . . . . . 6
ARTICLE III
Powers, Duties, 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
iii
<PAGE>
Preferred Guarantee Trustees . . . . . . . . . 12
ARTICLE V
Guarantee
SECTION 5.1. Guarantee . . . . . . . . . . . . . . . . . . . . . 12
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 . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.7. Independent Obligations . . . . . . . . . . . . . . 15
ARTICLE VI
Limitations of Transactions; Subordination
SECTION 6.1. Limitation of Transactions . . . . . . . . . . . . . 15
SECTION 6.2. Ranking . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII
Termination
SECTION 7.1. Termination . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VIII
Indemnification
SECTION 8.1. Exculpation . . . . . . . . . . . . . . . . . . . . 16
SECTION 8.2. Indemnification . . . . . . . . . . . . . . . . . . 17
ARTICLE IX
Miscellaneous
SECTION 9.1. Successors and Assigns . . . . . . . . . . . . . . . 17
SECTION 9.2. Amendments . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.3. Notices . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.4. Benefit . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.5. Governing Law . . . . . . . . . . . . . . . . . . . 19
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
----------
Note: This table of contents shall not, for any purpose, be deemed
to be a part of the Guarantee Agreement.
iv
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FORM OF
PREFERRED SECURITIES GUARANTEE AGREEMENT
DATED AS OF __________, ____
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of _______,
____, is executed and delivered by Northwestern Corporation, a
Delaware corporation (the "Guarantor"), and Wilmington Trust Company,
a Delaware banking corporation, not in its individual capacity but
solely 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 __, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of _________, ____, 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
$__________ aggregate stated liquidation amount of Preferred
Securities designated the ___% 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 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 such Preferred Securities to the extent the Issuer has funds
legally available therefor, (ii) the redemption price, including all
accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price"), to the extent the Issuer has funds legally
available therefor, 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 under the Indenture has occurred and is continuing, the
rights of holders of the Common Securities to receive payments under
the Common Securities Guarantee Agreement are subordinated to the
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rights of Holders of Preferred Securities to receive Guarantee
Payments under this Guarantee Agreement.
"Holder" shall mean 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
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
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"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 each 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.
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
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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 (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) may be given in the form of an Officers' Certificate.
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
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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, 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
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
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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
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
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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 Declaration;
(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
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,
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;
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(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
registration 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
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,
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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.
(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.
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SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee 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.
(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.
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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.
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.
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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 or any extension
of the maturity date of the Debentures permitted by the
Indenture);
(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;
(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;
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(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.
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
14
<PAGE>
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 restriction in this Section
6.1(a) shall not apply to any stock dividends paid by the Guarantor
where the dividend stock is the same stock as that on which the
dividend is being paid or to any payment on this Guarantee. In
addition, so long as any Preferred Securities remain outstanding, the
Guarantor (i) 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 (ii) 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
15
<PAGE>
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 Preferred Securities or (iii)
full 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 Preferred Securities Guarantee.
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
16
<PAGE>
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
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
17
<PAGE>
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):
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
33 Third Street, S.E.
Huron, South Dakota 57350
(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.
This Guarantee Agreement is solely for the benefit of the Holders of
the Preferred Securities and the Preferred Guarantee Trustee and,
subject to Section 3.1(a), is not separately transferable from the
Preferred Securities.
18
<PAGE>
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.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
NORTHWESTERN CORPORATION
By:____________________________
Daniel K. Newell
Vice President - Finance
and Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Preferred Guarantee Trustee
By:____________________________
Name:
Title:
19
EXHIBIT 5(a)
------------
[SCHIFF HARDIN & WAITE LETTERHEAD]
July 2, 1998
Northwestern Corporation
600 Market Street West
Huron, South Dakota 57350-1500
Ladies and Gentlemen:
We have acted as counsel to Northwestern Corporation, a Delaware
corporation (the "Company"), and Northwestern Capital Financing I,
Northwestern Capital Financing II and Northwestern Capital Financing
III, each a business trust formed under the laws of the state of
Delaware (each a "Trust" and collectively the "Trusts"), and are
rendering this opinion in connection with the Registration Statement
on Form S-3 (the "Registration Statement ) being filed by the Company
and the Trusts with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Company's: (i) Common Stock (including related Common
Stock Purchase Rights), par value $1.75 per share (the "Common
Stock"); (ii) Preferred Stock, par value $100.00 per share (the
"Preferred Stock"); (iii) Preference Stock, par value $50.00 per share
(the "Preference Stock"); (iv) Senior Debt Securities (the "Senior
Debt Securities"); (v) Subordinated Debt Securities (the "Subordinated
Debt Securities"); and (vi) guarantees (the "Guarantees") of Preferred
Securities as described below. The Registration Statement also
relates to the preferred securities of each of the Trusts (the
"Preferred Securities") all of which may be issued from time to time
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act at an aggregate initial offering price not to exceed
$500,000,000.
The Senior Debt Securities will be issued pursuant to an
Indenture between the Company and The Chase Manhattan Bank, as Trustee
(the "Senior Debt Indenture"), and the form of which has been filed as
an exhibit to the Registration Statement. The Subordinated Debt
Securities will be issued pursuant to a Subordinated Debt Securities
Indenture dated August 1, 1995 between the Company and The Chase
Manhattan Bank, as Trustee, as supplemented (the "Subordinated Debt
Indenture").
The Preferred Securities may be issued by each Trust pursuant to
an Amended and Restated Declaration of Trust to be filed with the
Secretary of State of the State of Delaware by the trustees of the
relevant Trusts, and the forms of which are filed as exhibits to the
Registration Statement. The Guarantees may be issued pursuant to a
Preferred Securities Guarantee Agreement (each a "Guarantee
Agreement") to be entered into between the Company and Wilmington
<PAGE>
Trust Company, as trustee, and the forms of which are filed as
exhibits to the Registration Statement.
In connection with our opinion, we have examined the Registration
Statement, including the exhibits thereto, and such other documents,
corporate records, and instruments and have examined such laws and
regulations as we have deemed necessary for the purposes of this
opinion. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all documents
submitted to us as copies and the authenticity of the originals of
such latter documents. Based upon such examination, and subject to
the limitations, qualifications and assumptions contained herein, we
are of the following opinions:
1. The Company has been duly incorporated and is a validly
existing corporation under the laws of the State of Delaware.
2. The Common Stock has been duly authorized and will be
validly issued, fully paid, and nonassessable at such time as: (i)
the Registration Statement has become effective under the Securities
Act, (ii) the Company has received an order of the Federal Energy
Regulatory Commission ("FERC") authorizing the issuance and sale of
the Common Stock which order is in effect at the time of the issuance
and sale, (iii) the terms of the issuance and sale of the Common
Stock have been duly established in conformity with resolutions
of the Board of Directors of the Company and the Company's Restated
Certificate of Incorporation, as amended, and By-laws, and (iv) the
Common Stock has been duly issued and sold as contemplated by the
Registration Statement and the Company s Restated Certificate of
Incorporation, as amended, and By-laws.
3. The Preferred Stock has been duly authorized and will be
validly issued, fully paid, and nonassessable at such time as: (i)
the Registration Statement has become effective under the Securities
Act, (ii) an appropriate Certificate or Certificates of Designations
relating to a class or series of the Preferred Stock to be sold under
the Registration Statement have been duly authorized and adopted and
filed with the Secretary of State of the State of Delaware, (iii) the
Company has received an order of the FERC authorizing the issuance and
sale of the Preferred Stock which order is in effect at the time of
the issuance and sale, (iv) the terms of the issuance and sale of
shares of such class or series of Preferred Stock have been duly
established in conformity with resolutions of the Board of Directors
of the Company and the Company's Restated Certificate of
Incorporation, as amended, (including the Certificate or Certificates
of Designation), and By-laws, and (v) the shares of such class or
series of Preferred Stock have been duly issued and sold as
contemplated by the Registration Statement and any prospectus
supplement relating thereto and the Company s Restated Certificate of
Incorporation (including the Certificate or Certificates of
Designation), and By-laws.
4. The Preference Stock has been duly authorized and will be
validly issued, fully paid, and nonassessable at such time as: (i)
the Registration Statement has become effective under the Securities
<PAGE>
Act, (ii) an appropriate Certificate or Certificates of Designations
relating to a class or series of the Preference Stock to be sold under
the Registration Statement have been duly authorized and adopted and
filed with the Secretary of State of the State of Delaware, (iii) the
Company has received an order of the FERC authorizing the issuance and
sale of the Preference Stock which order is in effect at the time of
such issuance and sale, (iv) the terms of the issuance and sale of
shares of such class or series of Preference Stock have been duly
established in conformity with resolutions of the Board of Directors
of the Company and the Company's Restated Certificate of
Incorporation, as amended, (including the Certificate or Certificates
of Designation), and By-laws, and (v) the shares of such class or
series of Preference Stock have been duly issued and sold as
contemplated by the Registration Statement and any prospectus
supplement relating thereto and the Company s Restated Certificate of
Incorporation (including the Certificate or Certificates of
Designation), and By-laws.
5. The Senior Debt Securities will be valid and legally binding
obligations of the Company, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles at such time as: (i) the Registration
Statement has become effective under the Securities Act, (ii) the
Senior Debt Indenture has been duly executed and delivered so as not
to violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or
governmental or regulatory body having jurisdiction over the Company,
(iii) the Company has received an order of the FERC authorizing the
issuance and sale of the Senior Debt Securities which order is in
effect at the time of such issuance and sale, (iv) the terms of the
Senior Debt Securities and of their issuance and sale have been duly
established in conformity with resolutions of the Board of Directors
of the Company and the Senior Debt Indenture, (v) the Senior Debt
Securities have been duly executed and authenticated in accordance
with the Senior Debt Indenture, and (vi) the Senior Debt Securities
have been duly issued and sold as contemplated by the Registration
Statement and any prospectus supplement relating thereto and the
Senior Debt Indenture.
6. The Subordinated Debt Securities will be valid and legally
binding obligations of the Company, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles at such time as: (i) the Registration
Statement has become effective under the Securities Act, (ii) the
Company has received an order of the FERC authorizing the issuance and
sale of the Common Stock which order is in effect at the time of
such issuance and sale, (iii) the terms of the Subordinated Debt
Securities and of their issuance and sale have been duly established
in conformity with resolutions of the Board of Directors of the
Company and the Subordinated Debt Indenture, (iv) the Subordinated
Debt Securities have been duly executed and authenticated in
accordance with the Subordinated Debt Indenture, and (v) the
Subordinated Debt Securities have been duly issued and sold as
<PAGE>
contemplated by the Registration Statement and any prospectus
supplement relating thereto and the Subordinated Debt Indenture.
7. The Guarantees will be valid and legally binding obligations
of the Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles at such time as: (i) the Registration
Statement has become effective under the Securities Act, (ii) the
applicable Guarantee Agreement has been duly executed and delivered so
as not to violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon the Company and so
as to comply with any requirement or restriction imposed by any court
or governmental or regulatory body having jurisdiction over the
Company, (iii) the Company has received an order of the FERC
authorizing the execution and delivery of the applicable Guarantee
Agreement which order is in effect at the time of such execution and
delivery and (iv) Preferred Securities have been duly issued and
delivered by the applicable Trust as contemplated by the Registration
Statement and any prospectus supplement relating thereto.
We express opinions herein with respect to the applicability of
the laws of the State of Illinois, the United States Federal laws and
the General Corporation Law of Delaware, and we express no opinion as
to the laws of any other jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company, and other sources believed
by us to be responsible.
We hereby consent to the use of this opinion for filing with the
Registration Statement as Exhibit 5(a) thereto and the reference to us
under the caption "Experts and Legal Opinions" in the Prospectus
contained in the Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ James E. Brown
--------------------------
James E. Brown
EXHIBIT 5(b)
------------
[Letterhead of Richards, Layton & Finger, P.A.]
July 2, 1998
Northwestern Capital Financing I
c/o Northwestern Corporation
33 Third Street S.E.
Huron, South Dakota 57350-1318
Re: NORTHWESTERN CAPITAL FINANCING I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Northwestern
Corporation, a Delaware corporation (the "Company"), and Northwestern
Capital Financing I, a Delaware business trust (the "Trust"), in
connection with the matters set forth herein. At your request, this
opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth,
our examination of documents has been limited to the examination of
originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated June 30,
1998 (the "Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on July 1,
1998;
(b) The Declaration of Trust of the Trust, dated as of June
30, 1998, among the Company and the trustees of the Trust named
therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus"), relating to the Preferred Securities of the Trust
representing preferred undivided beneficial interests in the assets of
the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the
Trust and others as set forth therein with the Securities and Exchange
Commission on or about July 2, 1998;
<PAGE>
Northwestern Capital Financing I
July 2, 1998
Page 2
(d) A form of Amended and Restated Declaration of Trust of
the Trust, to be entered into among the Company, as sponsor, the
trustees of the Trust named therein, and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust
(including Exhibit A and Annexes I and II thereto) (the
"Declaration"), attached as an exhibit to the Registration Statement;
and
(e) A Certificate of Good Standing for the Trust, dated
July 2, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through
(e) above. In particular, we have not reviewed any document (other
than the documents listed in paragraphs (a) through (e) above) that is
referred to in or incorporated by reference into the documents
reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the
opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein
and the additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of all
documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have
not been amended, (ii) except to the extent provided in paragraph 1
below, the due creation or due organization or due formation, as the
case may be, and valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction governing
its creation, organization or formation, (iii) the legal capacity of
natural persons who are parties to the documents examined by us, (iv)
that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations
under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi)
the receipt by each Person to whom a Preferred Security is to be
issued by the Trust (collectively, the "Preferred Security Holders")
of a Preferred Security Certificate for such Preferred Security and
<PAGE>
Northwestern Capital Financing I
July 2, 1998
Page 3
the payment for the Preferred Security acquired by it, in accordance
with the Declaration and the Registration Statement, and (vii) that
the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Declaration and the Registration
Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have
not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations
relating thereto. Our opinions are rendered only with respect to
Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have
considered necessary or appropriate, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of
the opinion that:
1. The Trust has been duly created and is validly existing
in good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully
paid and nonassessable undivided beneficial interests in the assets of
the Trust.
3. The Preferred Security Holders, as beneficial owners of
the Trust, will 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.
We note that the Preferred Security Holders may be obligated to make
payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement.
In addition, we hereby consent to the use of our name under the
heading "Experts and Legal Opinions" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder. Except as stated
<PAGE>
Northwestern Capital Financing I
July 2, 1998
Page 4
above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any
purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
-----------------------------------
BJK/BJ
<PAGE>
[Letterhead of Richards, Layton & Finger, P.A.]
July 2, 1998
Northwestern Capital Financing II
c/o Northwestern Corporation
33 Third Street S.E.
Huron, South Dakota 57350-1318
Re: NORTHWESTERN CAPITAL FINANCING II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Northwestern
Corporation, a Delaware corporation (the "Company"), and Northwestern
Capital Financing II, a Delaware business trust (formerly known as
NWPS Capital Financing II) (the "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being
furnished to you.
For purposes of giving the opinions hereinafter set forth,
our examination of documents has been limited to the examination of
originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated June 19,
1995, as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on June 19, 1995;
(b) The Restated Certificate of Trust of the Trust, dated
as of June 30, 1998 (the "Certificate"), as filed in the office of the
Secretary of State on July 1, 1998;
(c) The Declaration of Trust of the Trust, dated as of June
19, 1995 (the "Original Declaration"), among the Company and the
trustees of the Trust named therein;
(d) The First Amendment to the Original Declaration, dated
as of June 30, 1998, among the Company and the trustees of the Trust
named therein;
(e) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus"), relating to the Preferred Securities of the Trust
representing preferred undivided beneficial interests in the assets of
the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the
Trust and others as set forth therein with the Securities and Exchange
Commission on or about July 2, 1998;
<PAGE>
Northwestern Capital Financing II
July 2, 1998
Page 2
(f) A form of Amended and Restated Declaration of Trust of
the Trust, to be entered into among the Company, as sponsor, the
trustees of the Trust named therein, and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust
(including Exhibit A and Annexes I and II thereto) (the
"Declaration"), attached as an exhibit to the Registration Statement;
and
(g) A Certificate of Good Standing for the Trust, dated
July 2, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through
(g) above. In particular, we have not reviewed any document (other
than the documents listed in paragraphs (a) through (g) above) that is
referred to in or incorporated by reference into the documents
reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the
opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein
and the additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of all
documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have
not been amended, (ii) except to the extent provided in paragraph 1
below, the due creation or due organization or due formation, as the
case may be, and valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction governing
its creation, organization or formation, (iii) the legal capacity of
natural persons who are parties to the documents examined by us, (iv)
that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations
under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi)
<PAGE>
Northwestern Capital Financing II
July 2, 1998
Page 3
the receipt by each Person to whom a Preferred Security is to be
issued by the Trust (collectively, the "Preferred Security Holders")
of a Preferred Security Certificate for such Preferred Security and
the payment for the Preferred Security acquired by it, in accordance
with the Declaration and the Registration Statement, and (vii) that
the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Declaration and the Registration
Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have
not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations
relating thereto. Our opinions are rendered only with respect to
Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have
considered necessary or appropriate, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of
the opinion that:
1. The Trust has been duly created and is validly existing
in good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully
paid and nonassessable undivided beneficial interests in the assets of
the Trust.
3. The Preferred Security Holders, as beneficial owners of
the Trust, will 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.
We note that the Preferred Security Holders may be obligated to make
payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement.
In addition, we hereby consent to the use of our name under the
heading "Experts and Legal Opinions" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder. Except as stated
above, without our prior written consent, this opinion may not be
<PAGE>
Northwestern Capital Financing II
July 2, 1998
Page 4
furnished or quoted to, or relied upon by, any other Person for any
purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
-----------------------------------
BJK/BJ
<PAGE>
[Letterhead of Richards, Layton & Finger, P.A.]
July 2, 1998
Northwestern Capital Financing III
c/o Northwestern Corporation
33 Third Street S.E.
Huron, South Dakota 57350-1318
Re: NORTHWESTERN CAPITAL FINANCING III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Northwestern
Corporation, a Delaware corporation (the "Company"), and Northwestern
Capital Financing III, a Delaware business trust (formerly known as
NWPS Capital Financing III) (the "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being
furnished to you.
For purposes of giving the opinions hereinafter set forth,
our examination of documents has been limited to the examination of
originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated June 19,
1995, as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on June 19, 1995;
(b) The Restated Certificate of Trust of the Trust, dated
as of June 30, 1998 (the "Certificate"), as filed in the office of the
Secretary of State on July 1, 1998;
(c) The Declaration of Trust of the Trust, dated as of June
19, 1995 (the "Original Declaration"), among the Company and the
trustees of the Trust named therein;
(d) The First Amendment to the Original Declaration, dated
as of June 30, 1998, among the Company and the trustees of the Trust
named therein;
(e) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus"), relating to the Preferred Securities of the Trust
representing preferred undivided beneficial interests in the assets of
the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the
Trust and others as set forth therein with the Securities and Exchange
Commission on or about July 2, 1998;
<PAGE>
Northwestern Capital Financing III
July 2, 1998
Page 2
(f) A form of Amended and Restated Declaration of Trust of
the Trust, to be entered into among the Company, as sponsor, the
trustees of the Trust named therein, and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust
(including Exhibit A and Annexes I and II thereto) (the
"Declaration"), attached as an exhibit to the Registration Statement;
and
(g) A Certificate of Good Standing for the Trust, dated
July 2, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through
(g) above. In particular, we have not reviewed any document (other
than the documents listed in paragraphs (a) through (g) above) that is
referred to in or incorporated by reference into the documents
reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the
opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein
and the additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material
respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of all
documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have
not been amended, (ii) except to the extent provided in paragraph 1
below, the due creation or due organization or due formation, as the
case may be, and valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction governing
its creation, organization or formation, (iii) the legal capacity of
natural persons who are parties to the documents examined by us, (iv)
that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations
under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi)
the receipt by each Person to whom a Preferred Security is to be
issued by the Trust (collectively, the "Preferred Security Holders")
of a Preferred Security Certificate for such Preferred Security and
<PAGE>
Northwestern Capital Financing III
July 2, 1998
Page 3
the payment for the Preferred Security acquired by it, in accordance
with the Declaration and the Registration Statement, and (vii) that
the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Declaration and the Registration
Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have
not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations
relating thereto. Our opinions are rendered only with respect to
Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have
considered necessary or appropriate, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of
the opinion that:
1. The Trust has been duly created and is validly existing
in good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully
paid and nonassessable undivided beneficial interests in the assets of
the Trust.
3. The Preferred Security Holders, as beneficial owners of
the Trust, will 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.
We note that the Preferred Security Holders may be obligated to make
payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement.
In addition, we hereby consent to the use of our name under the
heading "Experts and Legal Opinions" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of
<PAGE>
Northwestern Capital Financing III
July 2, 1998
Page 4
the Securities and Exchange Commission thereunder. Except as stated
above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any
purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
-----------------------------------
BJK/BJ
EXHIBIT 23(a)
-------------
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
report dated January 30, 1998 included (or incorporated by reference)
in Northwestern Public Service Company's Form 10-K for the year ended
December 31, 1997 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSON LLP
Minneapolis, Minnesota
June 30, 1998
<PAGE>
EXHIBIT 25(a)
-------------
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
NORTHWESTERN CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 46-0172280
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
33 THIRD ST. SE
HURON, SOUTH DAKOTA 57350-1605
(Address of principal executive offices) (Zip Code)
---------------
DEBT SECURITIES
<PAGE>
(Title of the indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
New York State Banking Department, State House, Albany, New
York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now
in effect, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31, 1977,
December 31, 1980, September 9, 1982, February 28, 1985, December 2,
1991 and July 10, 1996 (see Exhibit 1 to Form T-1 filed in connection
with Registration Statement No. 333-06249, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference. On July 14, 1996, in connection with the merger of
Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to Form T-1 filed in connection with Registration Statement No. 333-
06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July
14, 1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, The Chase Manhattan Bank, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York
and State of New York, on the 30TH day of JUNE, 1998.
THE CHASE MANHATTAN BANK
By /s/ Ronald J. Halleran
------------------------------
/s/ Ronald J. Halleran
Second Vice President
-4-
<PAGE>
Exhibit 7 to FORM T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 12,037
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,054
Securities:
Held to maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,340
Available for sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,134
Federal funds sold and securities purchased under
agreements to resell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,982
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . . . . . . $127,958
Less: Allowance for loan and lease losses . . . . . . . . . . . . . . . 2,797
Less: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . 0
--------
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125,161
Trading Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61,820
Premises and fixed assets (including capitalized
leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,961
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347
Investments in unconsolidated subsidiaries and
associated companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Customers' liability to this bank on acceptances
outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,380
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,549
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,727
--------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $298,734
========
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $96,682
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . $38,074
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58,608
-------
-5-
<PAGE>
In foreign offices, Edge and Agreement, subsidiaries and IBF's . . . . . . . . . . . . . 72,630
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . $3,289
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69,341
-------
Federal funds purchased and securities sold under agreements to repurchase . . . . . . . . . . . 42,735
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . 872
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,545
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less . . . . . . . . . . . . . . . . . . . . . 4,454
With a remaining maturity of more than one year through three years . . . . . . . . . . 231
With a remaining maturity of more than three years . . . . . . . . . . . . . . . . . . . 106
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . 1,380
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,708
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,295
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281,638
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,211
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . . . . . . 10,291
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,579
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . (1)
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . . . . 16
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,096
--------
TOTAL LIABILITIES AND EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $298,734
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do
hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the appropriate Federal
regulatory authority and is true to the best of my knowledge and
belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us, and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-6-
EXHIBIT 25(b)
-------------
Registration No.
======================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NORTHWESTERN CORPORATION
NORTHWESTERN CAPITAL FINANCING I
(Exact name of obligor as specified in its charter)
Delaware 46-0172280
Delaware Applied For
(State of incorporation) (I.R.S. employer identification no.)
33 Third Street SE
Huron, South Dakota 57350-1605
(Address of principal executive offices) (Zip Code)
Preferred Securities of Northwestern Capital Financing I
(Title of the indenture securities)
======================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the
obligor is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington
Trust Company to commence business and the
authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington
Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Wilmington and State of Delaware
on the 1st day of July, 1998.
2
<PAGE>
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ W. Chris Sponenberg By:/s/ James P. Lawler
----------------------- -----------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
3
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
Amended Charter
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of
the General Assembly of the State of Delaware, entitled "An Act to
Incorporate the Delaware Guarantee and Trust Company", approved March
2, A.D. 1901, and the name of which company was changed to "WILMINGTON
TRUST COMPANY" by an amendment filed in the Office of the Secretary of
State on March 18, A.D. 1903, and the Charter or Act of Incorporation
of which company has been from time to time amended and changed by
merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend
its Charter or Act of Incorporation so that the same as so altered and
amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is
WILMINGTON TRUST COMPANY whose address is Rodney Square North, in
said City. In addition to such principal office, the said
corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at
Milford Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at Ninth
and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and
3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by
this Corporation are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons
might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
to appoint such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of
debt, to receive deposits of money, or securities for money,
to buy gold and silver bullion and foreign coins, to buy and
sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for
the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
3
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of
the Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to vary
or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon
the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when
the Board of Directors shall determine, and in the promotion
of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
4
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or inference
from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes
and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock
shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other
special rights of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and,
subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and
restrictions of such series, including, but without limiting the
generality of the foregoing, the following:
5
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of any series
of the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion
or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
6
all the requirements, if any, with respect to the setting aside
of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this
Article FOURTH, then and not otherwise the holders of Common
Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b) of
this Article FOURTH, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held on
all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason
of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series,
or carrying any right to purchase stock of any class or series,
but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible
into or exchangeable for stock, or carrying any right to purchase
stock, may be issued and disposed of pursuant to resolution of
the Board of Directors to such persons, firms, corporations or
associations, whether such holders or others, and upon such terms
as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series
of Preferred Stock in relation to the relative powers,
preferences and rights of each other series of Preferred Stock
shall, in each case, be as fixed from time to time by the Board
7
of Directors in the resolution or resolutions adopted pursuant to
authority granted in section (b) of this Article FOURTH and the
consent, by class or series vote or otherwise, of the holders of
such of the series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the Board
of Directors of any other series of Preferred Stock whether or
not the powers, preferences and rights of such other series shall
be fixed by the Board of Directors as senior to, or on a parity
with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of
Directors may provide in the resolution or resolutions as to any
series of Preferred Stock adopted pursuant to section (b) of this
Article FOURTH that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
(g) Shares of Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall
be conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the
term of any director at the time in office, and provided further,
that the number of directors constituting the whole Board shall
be twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes,
as nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
8
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason,
and any newly created directorships resulting from any increase
in the directors, may be filled by the Board of Directors, acting
by a majority of the directors then in office, although less than
a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the By-
Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of two-
thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice
in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the Corporation not
less than 14 days nor more than 50 days prior to any meeting of
the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is
given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not
later than the close of the seventh day following the day on
which notice of the meeting was mailed to stockholders. Notice
of nominations which are proposed by the Board of Directors shall
be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number of
shares of stock of the Corporation which are beneficially owned
by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
9
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any
action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the
same powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time
to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional By-
Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for
this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
10
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the
books of the Company outside of the State of Delaware at such
places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested Stockholder
or any Affiliate of any Interested Stockholder of any assets
of the Corporation or any Subsidiary having an aggregate
fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-
thirds of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, considered
for the purpose of this Article FIFTEENTH as one class ("Voting
Shares"). Such affirmative vote shall be required notwithstanding the
11
fact that no vote may be required, or that some lesser percentage may
be specified, by law or in any agreement with any national securities
exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E)
of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation of By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote
on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
12
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority
of any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
13
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter
or Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH OR
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except to the
extent such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
14
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on
the third Thursday in April each year at the principal office at the
Company or at such other date, time, or place as may be designated by
resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before
said meeting, at his last known address, a written or printed notice
fixing the time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of stockholders
for the transaction of any business, but the holders of a small number
of shares may adjourn, from time to time, without further notice,
until a quorum is secured. At each annual or special meeting of
stockholders, each stockholder shall be entitled to one vote, either
in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for
any such meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two
(72) years shall be nominated for election to the Board of Directors
of the Company, provided, however, that this limitation shall not
apply to any person who was serving as director of the Company on
September 16, 1971.
Section 3. The class of Directors so elected shall hold office
for three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members, or at the call of the
Chairman of the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority
of the directors.
Section 7. A majority of the directors elected and qualified
shall be necessary to constitute a quorum for the transaction of
business at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in
the time or place of any regular meeting, stating the time and place
of such meeting, which shall be mailed not less than two days before
the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect
the successor who shall hold office for the remainder of the full term
of the class of directors in which the vacancy occurred, and until
such director's successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after
its election by the stockholders shall appoint an Executive Committee,
a Trust Committee, an Audit Committee and a Compensation Committee,
and shall elect from its own members a Chairman of the Board of
Directors and a President who may be the same person. The Board of
Directors shall also elect at such meeting a Secretary and a
Treasurer, who may be the same person, may appoint at any time such
other committees and elect or appoint such other officers as it may
deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with
or without cause, any member of any Committee appointed by it or any
associate director or officer elected by it and may appoint or elect
his successor.
Section 12. The Board of Directors may designate an officer to
be in charge of such of the departments or division of the Company as
it may deem advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors
from its own members and who shall hold office during the pleasure of
the Board.
2
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact
all business for and in behalf of the Company that may be brought
before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of
the Chairman of the Executive Committee or at the call of the Chairman
of the Board of Directors. The majority of its members shall be
necessary to constitute a quorum for the transaction of business.
Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its
next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the
Company, and shall direct the disposal of the same, in accordance with
such rules and regulations as the Board of Directors from time to time
make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the
affairs and business of the Company by its directors and officers as
contemplated by these By-Laws any two available members of the
Executive Committee as constituted immediately prior to such disaster
shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than
three members of the Trust Committee is constituted immediately prior
to such disaster shall be available for the transaction of its
business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III
Section 2 hereof. In the event of the unavailability, at such time,
of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company
in accordance with the foregoing provisions of this Section. This By-
Law shall be subject to implementation by Resolutions of the Board of
Directors presently existing or hereafter passed from time to time for
that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of
this Section or to the provisions of any such implementary Resolutions
shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this
section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the
other provisions of these By-Laws.
3
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not
more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of
Directors and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust
funds, in all matters, however, being subject to the approval of the
Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute
a quorum for the transaction of business.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the
Company to whom supervision over the investment of trust funds may be
delegated when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall
hold office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to
the approval of the Board of Directors; it shall consider all matters
brought to its attention by the officer in charge of the Audit
Division, review all reports of examination of the Company made by any
governmental agency or such independent auditor employed for that
purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to
auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for
the transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of
not more than five (5) members who shall be selected by the Board of
4
Directors from its own members who are not officers of the Company and
who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the
management of the Company, major organizational matters, including
salaries and employee benefits and specifically shall administer the
Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment
to Committees of the Company, with the exception of the Executive
Committee, Audit Committee and Compensation Committee, which must be
comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any member
of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absence or
disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside
at all meetings of the Board and shall have such further authority and
powers and shall perform such duties as the Board of Directors may
from time to time confer and direct. He shall also exercise such
powers and perform such duties as may from time to time be agreed upon
between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
5
Directors at which the Chairman of the Board shall not be present and
shall have such further authority and powers and shall perform such
duties as the Board of Directors or the Chairman of the Board may from
time to time confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon
him by statute or assigned to him by the Board of Directors in the
absence of the Chairman of the Board the President shall have the
powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry into
effect all legal directions of the Executive Committee and of the
Board of Directors, and shall at all times exercise general
supervision over the interest, affairs and operations of the Company
and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all
the duties of the Chairman of the Board of Directors and/or the
President and such other powers and duties as may from time to time be
assigned to them by the Board of Directors, the Executive Committee,
the Chairman of the Board or the President and by the officer in
charge of the department or division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as
the Committees thereof, to the keeping of accurate minutes of all such
meetings and to recording the same in the minute books of the Company.
In addition to the other notice requirements of these By-Laws and as
may be practicable under the circumstances, all such notices shall be
in writing and mailed well in advance of the scheduled date of any
other meeting. He shall have custody of the corporate seal and shall
affix the same to any documents requiring such corporate seal and to
attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for
the keeping of proper records of the evidence of property or
indebtedness and of all the transactions of the Company. He shall
have general supervision of the expenditures of the Company and shall
report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be
assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate
6
times a report relating to the general condition and internal
operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the
Controller and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to
be in charge of the Audit Division of the Company with such title as
the Board of Directors shall prescribe, shall report to and be
directly responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge
of the Audit Division.
Section 10. There may be one or more officers, subordinate in
rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex
officio hold the office Assistant Secretary of this Company and who
may perform such duties as may be prescribed by the officer in charge
of the department or division to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are
assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books
of the Company and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an
Assistant Secretary, and the seal of the corporation shall be engraved
thereon. Each certificate shall recite that the stock represented
thereby is transferrable only upon the books of the Company by the
holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof.
Duplicate certificates of stock shall be issued only upon giving such
security as may be satisfactory to the Board of Directors or the
Executive Committee.
7
Section 3. The Board of Directors of the Company is authorized
to fix in advance a record date for the determination of the
stockholders entitled to notice of, and to vote at, any meeting of
stockholders and any adjournment thereof, or entitled to receive
payment of any dividend, or to any allotment or rights, or to exercise
any rights in respect of any change, conversion or exchange of capital
stock, or in connection with obtaining the consent of stockholders for
any purpose, which record date shall not be more than 60 nor less than
10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute,
acknowledge and/or deliver and the Secretary or any Assistant
Secretary shall have full power and authority to attest and affix the
corporate seal of the Company to any and all deeds, conveyances,
assignments, releases, contracts, agreements, bonds, notes, mortgages
and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in
any other fiduciary or representative capacity by any and every method
of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of
Directors or the Executive Committee, and any and all such instruments
shall have the same force and validity as though expressly authorized
by the Board of Directors and/or the Executive Committee.
8
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company,
other than salaried officers of the Company, shall be paid such
reasonable honoraria or fees for attending meetings of the Board of
Directors as the Board of Directors may from time to time determine.
Directors and associate directors who serve as members of committees,
other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors
and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact
that he, or a person for whom he is the legal representative, is or
was a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer,
employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred
in defending any proceeding in advance of its final disposition,
PROVIDED, HOWEVER, that the payment of expenses incurred by a Director
officer in his capacity as a Director or officer in advance of the
final disposition of the proceeding shall be made only upon receipt of
an undertaking by the Director or officer to repay all amounts
advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or
otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation
the claimant may file suit to recover the unpaid amount of such claim
9
and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the
Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the
Charter or Act of Incorporation, these By-Laws, agreement, vote of
stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular
or special meeting of the Board of Directors by a vote of the majority
of all the members of the Board of Directors then in office.
10
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1998 By: /s/ James P. Lawler
-----------------------------
Name: James P. Lawler
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved
by any state banking authorities. Refer to your appropriate state
banking authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
-------------------------------------------------- ----------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1998.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . . . . . . . . . . . 180,015
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287,798
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,355,745
Federal funds sold and securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . 124,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 3,896,238
LESS: Allowance for loan and lease losses. . . . . . 61,635
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . . . . . . . . . . . 3,834,603
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . 134,016
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,444
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . . . . . . 10
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,264
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215,048
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,189,443
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,183,321
Noninterest-bearing . . . . . . . . 904,511
Interest-bearing. . . . . . . . . . 3,278,810
Federal funds purchased and Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . 558,553
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57,761
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788,000
With original maturity of more than one year . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99,777
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,730,412
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . . . . . . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388,458
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . . 7,955
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459,031
Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . . . . . . . . . . 6,189,443
</TABLE>
2
EXHIBIT 25(c)
-------------
Registration No.
======================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NORTHWESTERN CORPORATION
NORTHWESTERN CAPITAL FINANCING II
(Exact name of obligor as specified in its charter)
Delaware 46-0172280
Delaware Applied For
(State of incorporation) (I.R.S. employer identification no.)
33 Third Street SE
Huron, South Dakota 57350-1605
(Address of principal executive offices) (Zip Code)
Preferred Securities of Northwestern Capital Financing II
(Title of the indenture securities)
======================================================================
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the
obligor is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust
powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Wilmington and State of Delaware
on the 1st day of July, 1998.
2
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ James P. Lawler
----------------------- ----------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of
the General Assembly of the State of Delaware, entitled "An Act to
Incorporate the Delaware Guarantee and Trust Company", approved March
2, A.D. 1901, and the name of which company was changed to "WILMINGTON
TRUST COMPANY" by an amendment filed in the Office of the Secretary of
State on March 18, A.D. 1903, and the Charter or Act of Incorporation
of which company has been from time to time amended and changed by
merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend
its Charter or Act of Incorporation so that the same as so altered and
amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is
WILMINGTON TRUST COMPANY whose address is Rodney Square North, in
said City. In addition to such principal office, the said
corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at
Milford Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at Ninth
and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and
3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by
this Corporation are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons
might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of
debt, to receive deposits of money, or securities for money,
to buy gold and silver bullion and foreign coins, to buy and
sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for
the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
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(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
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debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of
the Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to vary
or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon
the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when
the Board of Directors shall determine, and in the promotion
of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
4
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or inference
from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes
and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock
shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other
special rights of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and,
subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and
restrictions of such series, including, but without limiting the
generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
5
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of any series
of the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion
or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside
6
of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this
Article FOURTH, then and not otherwise the holders of Common
Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b) of
this Article FOURTH, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held on
all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason
of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series,
or carrying any right to purchase stock of any class or series,
but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible
into or exchangeable for stock, or carrying any right to purchase
stock, may be issued and disposed of pursuant to resolution of
the Board of Directors to such persons, firms, corporations or
associations, whether such holders or others, and upon such terms
as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series
of Preferred Stock in relation to the relative powers,
preferences and rights of each other series of Preferred Stock
shall, in each case, be as fixed from time to time by the Board
of Directors in the resolution or resolutions adopted pursuant to
7
authority granted in section (b) of this Article FOURTH and the
consent, by class or series vote or otherwise, of the holders of
such of the series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the Board
of Directors of any other series of Preferred Stock whether or
not the powers, preferences and rights of such other series shall
be fixed by the Board of Directors as senior to, or on a parity
with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of
Directors may provide in the resolution or resolutions as to any
series of Preferred Stock adopted pursuant to section (b) of this
Article FOURTH that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
(g) Shares of Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall
be conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the
term of any director at the time in office, and provided further,
that the number of directors constituting the whole Board shall
be twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes,
as nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
8
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason,
and any newly created directorships resulting from any increase
in the directors, may be filled by the Board of Directors, acting
by a majority of the directors then in office, although less than
a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the By-
Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of two-
thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice
in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the Corporation not
less than 14 days nor more than 50 days prior to any meeting of
the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is
given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not
later than the close of the seventh day following the day on
which notice of the meeting was mailed to stockholders. Notice
of nominations which are proposed by the Board of Directors shall
be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number of
shares of stock of the Corporation which are beneficially owned
by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
9
so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any
action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the
same powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time
to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional By-
Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for
this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the
10
books of the Company outside of the State of Delaware at such
places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested Stockholder
or any Affiliate of any Interested Stockholder of any assets
of the Corporation or any Subsidiary having an aggregate
fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-
thirds of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, considered
for the purpose of this Article FIFTEENTH as one class ("Voting
Shares"). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that some lesser percentage may
11
be specified, by law or in any agreement with any national securities
exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E)
of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation of By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote
on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
(B) which such person or any of its Affiliates or
12
Associates has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority
of any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
13
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter
or Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except to the
extent such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
14
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on
the third Thursday in April each year at the principal office at the
Company or at such other date, time, or place as may be designated by
resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before
said meeting, at his last known address, a written or printed notice
fixing the time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of stockholders
for the transaction of any business, but the holders of a small number
of shares may adjourn, from time to time, without further notice,
until a quorum is secured. At each annual or special meeting of
stockholders, each stockholder shall be entitled to one vote, either
in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for
any such meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two
(72) years shall be nominated for election to the Board of Directors
of the Company, provided, however, that this limitation shall not
apply to any person who was serving as director of the Company on
September 16, 1971.
Section 3. The class of Directors so elected shall hold office
for three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members, or at the call of the
Chairman of the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority
of the directors.
Section 7. A majority of the directors elected and qualified
shall be necessary to constitute a quorum for the transaction of
business at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in
the time or place of any regular meeting, stating the time and place
of such meeting, which shall be mailed not less than two days before
the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect
the successor who shall hold office for the remainder of the full term
of the class of directors in which the vacancy occurred, and until
such director's successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after
its election by the stockholders shall appoint an Executive Committee,
a Trust Committee, an Audit Committee and a Compensation Committee,
and shall elect from its own members a Chairman of the Board of
Directors and a President who may be the same person. The Board of
Directors shall also elect at such meeting a Secretary and a
Treasurer, who may be the same person, may appoint at any time such
other committees and elect or appoint such other officers as it may
deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with
or without cause, any member of any Committee appointed by it or any
associate director or officer elected by it and may appoint or elect
his successor.
Section 12. The Board of Directors may designate an officer to
be in charge of such of the departments or division of the Company as
it may deem advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors
from its own members and who shall hold office during the pleasure of
the Board.
2
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact
all business for and in behalf of the Company that may be brought
before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of
the Chairman of the Executive Committee or at the call of the Chairman
of the Board of Directors. The majority of its members shall be
necessary to constitute a quorum for the transaction of business.
Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its
next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the
Company, and shall direct the disposal of the same, in accordance with
such rules and regulations as the Board of Directors from time to time
make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the
affairs and business of the Company by its directors and officers as
contemplated by these By-Laws any two available members of the
Executive Committee as constituted immediately prior to such disaster
shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than
three members of the Trust Committee is constituted immediately prior
to such disaster shall be available for the transaction of its
business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III
Section 2 hereof. In the event of the unavailability, at such time,
of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company
in accordance with the foregoing provisions of this Section. This By-
Law shall be subject to implementation by Resolutions of the Board of
Directors presently existing or hereafter passed from time to time for
that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of
this Section or to the provisions of any such implementary Resolutions
shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this
section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the
other provisions of these By-Laws.
3
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not
more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of
Directors and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust
funds, in all matters, however, being subject to the approval of the
Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute
a quorum for the transaction of business.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the
Company to whom supervision over the investment of trust funds may be
delegated when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall
hold office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to
the approval of the Board of Directors; it shall consider all matters
brought to its attention by the officer in charge of the Audit
Division, review all reports of examination of the Company made by any
governmental agency or such independent auditor employed for that
purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to
auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for
the transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of
not more than five (5) members who shall be selected by the Board of
4
Directors from its own members who are not officers of the Company and
who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the
management of the Company, major organizational matters, including
salaries and employee benefits and specifically shall administer the
Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment
to Committees of the Company, with the exception of the Executive
Committee, Audit Committee and Compensation Committee, which must be
comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any member
of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absence or
disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside
at all meetings of the Board and shall have such further authority and
powers and shall perform such duties as the Board of Directors may
from time to time confer and direct. He shall also exercise such
powers and perform such duties as may from time to time be agreed upon
between himself and the President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
5
Directors at which the Chairman of the Board shall not be present and
shall have such further authority and powers and shall perform such
duties as the Board of Directors or the Chairman of the Board may from
time to time confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon
him by statute or assigned to him by the Board of Directors in the
absence of the Chairman of the Board the President shall have the
powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry into
effect all legal directions of the Executive Committee and of the
Board of Directors, and shall at all times exercise general
supervision over the interest, affairs and operations of the Company
and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all
the duties of the Chairman of the Board of Directors and/or the
President and such other powers and duties as may from time to time be
assigned to them by the Board of Directors, the Executive Committee,
the Chairman of the Board or the President and by the officer in
charge of the department or division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as
the Committees thereof, to the keeping of accurate minutes of all such
meetings and to recording the same in the minute books of the Company.
In addition to the other notice requirements of these By-Laws and as
may be practicable under the circumstances, all such notices shall be
in writing and mailed well in advance of the scheduled date of any
other meeting. He shall have custody of the corporate seal and shall
affix the same to any documents requiring such corporate seal and to
attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for
the keeping of proper records of the evidence of property or
indebtedness and of all the transactions of the Company. He shall
have general supervision of the expenditures of the Company and shall
report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be
assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate
times a report relating to the general condition and internal
6
operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the
Controller and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to
be in charge of the Audit Division of the Company with such title as
the Board of Directors shall prescribe, shall report to and be
directly responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge
of the Audit Division.
Section 10. There may be one or more officers, subordinate in
rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex
officio hold the office Assistant Secretary of this Company and who
may perform such duties as may be prescribed by the officer in charge
of the department or division to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are
assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books
of the Company and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an
Assistant Secretary, and the seal of the corporation shall be engraved
thereon. Each certificate shall recite that the stock represented
thereby is transferrable only upon the books of the Company by the
holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof.
Duplicate certificates of stock shall be issued only upon giving such
security as may be satisfactory to the Board of Directors or the
Executive Committee.
7
Section 3. The Board of Directors of the Company is authorized
to fix in advance a record date for the determination of the
stockholders entitled to notice of, and to vote at, any meeting of
stockholders and any adjournment thereof, or entitled to receive
payment of any dividend, or to any allotment or rights, or to exercise
any rights in respect of any change, conversion or exchange of capital
stock, or in connection with obtaining the consent of stockholders for
any purpose, which record date shall not be more than 60 nor less than
10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute,
acknowledge and/or deliver and the Secretary or any Assistant
Secretary shall have full power and authority to attest and affix the
corporate seal of the Company to any and all deeds, conveyances,
assignments, releases, contracts, agreements, bonds, notes, mortgages
and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in
any other fiduciary or representative capacity by any and every method
of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of
Directors or the Executive Committee, and any and all such instruments
shall have the same force and validity as though expressly authorized
by the Board of Directors and/or the Executive Committee.
8
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company,
other than salaried officers of the Company, shall be paid such
reasonable honoraria or fees for attending meetings of the Board of
Directors as the Board of Directors may from time to time determine.
Directors and associate directors who serve as members of committees,
other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors
and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact
that he, or a person for whom he is the legal representative, is or
was a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer,
employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred
in defending any proceeding in advance of its final disposition,
provided, however, that the payment of expenses incurred by a Director
officer in his capacity as a Director or officer in advance of the
final disposition of the proceeding shall be made only upon receipt of
an undertaking by the Director or officer to repay all amounts
advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or
otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation
9
the claimant may file suit to recover the unpaid amount of such claim
and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the
Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the
Charter or Act of Incorporation, these By-Laws, agreement, vote of
stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular
or special meeting of the Board of Directors by a vote of the majority
of all the members of the Board of Directors then in office.
10
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1998 By: /s/ James P. Lawler
---------------------
Name: James P. Lawler
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved
by any state banking authorities. Refer to your appropriate state
banking authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
--------------------------------------------------- ---------------
Name of Bank
City
in the State of DELAWARE, at the close of business on March 31, 1998.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . . . . . . . . . . . . 180,015
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287,798
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,355,745
Federal funds sold and securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . 124,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 3,896,238
LESS: Allowance for loan and lease losses. . . . . . 61,635
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . . . . . . . . . . . . 3,834,603
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . 134,016
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,444
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . . . . . . . 10
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,264
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215,048
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,189,443
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,183,321
Noninterest-bearing . . . . . . . . 904,511
Interest-bearing. . . . . . . . . . 3,278,810
Federal funds purchased and Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . 558,553
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57,761
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788,000
With original maturity of more than one year . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99,777
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,730,412
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388,458
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . . . 7,955
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459,031
Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . . . . . . . . . . . 6,189,443
</TABLE>
2
EXHIBIT 25(d)
-------------
Registration No.
======================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NORTHWESTERN CORPORATION
NORTHWESTERN CAPITAL FINANCING III
(Exact name of obligor as specified in its charter)
Delaware 46-0172280
Delaware Applied For
(State of incorporation) (I.R.S. employer identification no.)
33 Third Street SE
Huron, South Dakota 57350-1605
(Address of principal executive offices) (Zip Code)
Preferred Securities of Northwestern Capital Financing III
(Title of the indenture securities)
======================================================================
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the
obligor is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust
powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington
Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Wilmington and State of Delaware
on the 1st day of July, 1998.
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WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ James P. Lawler
----------------------- ----------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
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EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of
the General Assembly of the State of Delaware, entitled "An Act to
Incorporate the Delaware Guarantee and Trust Company", approved March
2, A.D. 1901, and the name of which company was changed to "WILMINGTON
TRUST COMPANY" by an amendment filed in the Office of the Secretary of
State on March 18, A.D. 1903, and the Charter or Act of Incorporation
of which company has been from time to time amended and changed by
merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend
its Charter or Act of Incorporation so that the same as so altered and
amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is
WILMINGTON TRUST COMPANY whose address is Rodney Square North, in
said City. In addition to such principal office, the said
corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at
Milford Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at Ninth
and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and
3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by
this Corporation are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons
might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of
debt, to receive deposits of money, or securities for money,
to buy gold and silver bullion and foreign coins, to buy and
sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for
the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
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(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
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debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of
the Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to vary
or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon
the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when
the Board of Directors shall determine, and in the promotion
of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
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its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or inference
from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes
and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock
shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other
special rights of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and,
subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and
restrictions of such series, including, but without limiting the
generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
5
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of any series
of the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion
or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside
6
of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this
Article FOURTH, then and not otherwise the holders of Common
Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b) of
this Article FOURTH, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held on
all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason
of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series,
or carrying any right to purchase stock of any class or series,
but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible
into or exchangeable for stock, or carrying any right to purchase
stock, may be issued and disposed of pursuant to resolution of
the Board of Directors to such persons, firms, corporations or
associations, whether such holders or others, and upon such terms
as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series
of Preferred Stock in relation to the relative powers,
preferences and rights of each other series of Preferred Stock
shall, in each case, be as fixed from time to time by the Board
of Directors in the resolution or resolutions adopted pursuant to
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authority granted in section (b) of this Article FOURTH and the
consent, by class or series vote or otherwise, of the holders of
such of the series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the Board
of Directors of any other series of Preferred Stock whether or
not the powers, preferences and rights of such other series shall
be fixed by the Board of Directors as senior to, or on a parity
with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of
Directors may provide in the resolution or resolutions as to any
series of Preferred Stock adopted pursuant to section (b) of this
Article FOURTH that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
(g) Shares of Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall
be conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the
term of any director at the time in office, and provided further,
that the number of directors constituting the whole Board shall
be twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes,
as nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
8
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason,
and any newly created directorships resulting from any increase
in the directors, may be filled by the Board of Directors, acting
by a majority of the directors then in office, although less than
a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the By-
Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of two-
thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice
in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the Corporation not
less than 14 days nor more than 50 days prior to any meeting of
the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is
given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not
later than the close of the seventh day following the day on
which notice of the meeting was mailed to stockholders. Notice
of nominations which are proposed by the Board of Directors shall
be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number of
shares of stock of the Corporation which are beneficially owned
by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
9
so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any
action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the
same powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time
to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional By-
Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for
this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the
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books of the Company outside of the State of Delaware at such
places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested Stockholder
or any Affiliate of any Interested Stockholder of any assets
of the Corporation or any Subsidiary having an aggregate
fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-
thirds of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, considered
for the purpose of this Article FIFTEENTH as one class ("Voting
Shares"). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that some lesser percentage may
be specified, by law or in any agreement with any national securities
11
exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E)
of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation of By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote
on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right
12
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority
of any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
13
SIXTEENTH: Notwithstanding any other provision of this Charter
or Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except to the
extent such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
14
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on
the third Thursday in April each year at the principal office at the
Company or at such other date, time, or place as may be designated by
resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before
said meeting, at his last known address, a written or printed notice
fixing the time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of stockholders
for the transaction of any business, but the holders of a small number
of shares may adjourn, from time to time, without further notice,
until a quorum is secured. At each annual or special meeting of
stockholders, each stockholder shall be entitled to one vote, either
in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for
any such meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two
(72) years shall be nominated for election to the Board of Directors
of the Company, provided, however, that this limitation shall not
apply to any person who was serving as director of the Company on
September 16, 1971.
Section 3. The class of Directors so elected shall hold office
for three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members, or at the call of the
Chairman of the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority
of the directors.
Section 7. A majority of the directors elected and qualified
shall be necessary to constitute a quorum for the transaction of
business at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in
the time or place of any regular meeting, stating the time and place
of such meeting, which shall be mailed not less than two days before
the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect
the successor who shall hold office for the remainder of the full term
of the class of directors in which the vacancy occurred, and until
such director's successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after
its election by the stockholders shall appoint an Executive Committee,
a Trust Committee, an Audit Committee and a Compensation Committee,
and shall elect from its own members a Chairman of the Board of
Directors and a President who may be the same person. The Board of
Directors shall also elect at such meeting a Secretary and a
Treasurer, who may be the same person, may appoint at any time such
other committees and elect or appoint such other officers as it may
deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with
or without cause, any member of any Committee appointed by it or any
associate director or officer elected by it and may appoint or elect
his successor.
Section 12. The Board of Directors may designate an officer to
be in charge of such of the departments or division of the Company as
it may deem advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors
from its own members and who shall hold office during the pleasure of
the Board.
2
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact
all business for and in behalf of the Company that may be brought
before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of
the Chairman of the Executive Committee or at the call of the Chairman
of the Board of Directors. The majority of its members shall be
necessary to constitute a quorum for the transaction of business.
Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its
next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the
Company, and shall direct the disposal of the same, in accordance with
such rules and regulations as the Board of Directors from time to time
make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the
affairs and business of the Company by its directors and officers as
contemplated by these By-Laws any two available members of the
Executive Committee as constituted immediately prior to such disaster
shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than
three members of the Trust Committee is constituted immediately prior
to such disaster shall be available for the transaction of its
business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III
Section 2 hereof. In the event of the unavailability, at such time,
of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company
in accordance with the foregoing provisions of this Section. This By-
Law shall be subject to implementation by Resolutions of the Board of
Directors presently existing or hereafter passed from time to time for
that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of
this Section or to the provisions of any such implementary Resolutions
shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this
section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the
other provisions of these By-Laws.
3
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not
more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of
Directors and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust
funds, in all matters, however, being subject to the approval of the
Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute
a quorum for the transaction of business.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the
Company to whom supervision over the investment of trust funds may be
delegated when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall
hold office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to
the approval of the Board of Directors; it shall consider all matters
brought to its attention by the officer in charge of the Audit
Division, review all reports of examination of the Company made by any
governmental agency or such independent auditor employed for that
purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to
auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for
the transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of
not more than five (5) members who shall be selected by the Board of
4
Directors from its own members who are not officers of the Company and
who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the
management of the Company, major organizational matters, including
salaries and employee benefits and specifically shall administer the
Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment
to Committees of the Company, with the exception of the Executive
Committee, Audit Committee and Compensation Committee, which must be
comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any member
of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absence or
disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside
at all meetings of the Board and shall have such further authority and
powers and shall perform such duties as the Board of Directors may
from time to time confer and direct. He shall also exercise such
powers and perform such duties as may from time to time be agreed upon
between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
5
Directors at which the Chairman of the Board shall not be present and
shall have such further authority and powers and shall perform such
duties as the Board of Directors or the Chairman of the Board may from
time to time confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon
him by statute or assigned to him by the Board of Directors in the
absence of the Chairman of the Board the President shall have the
powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry into
effect all legal directions of the Executive Committee and of the
Board of Directors, and shall at all times exercise general
supervision over the interest, affairs and operations of the Company
and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all
the duties of the Chairman of the Board of Directors and/or the
President and such other powers and duties as may from time to time be
assigned to them by the Board of Directors, the Executive Committee,
the Chairman of the Board or the President and by the officer in
charge of the department or division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as
the Committees thereof, to the keeping of accurate minutes of all such
meetings and to recording the same in the minute books of the Company.
In addition to the other notice requirements of these By-Laws and as
may be practicable under the circumstances, all such notices shall be
in writing and mailed well in advance of the scheduled date of any
other meeting. He shall have custody of the corporate seal and shall
affix the same to any documents requiring such corporate seal and to
attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for
the keeping of proper records of the evidence of property or
indebtedness and of all the transactions of the Company. He shall
have general supervision of the expenditures of the Company and shall
report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be
assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate
times a report relating to the general condition and internal
6
operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the
Controller and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to
be in charge of the Audit Division of the Company with such title as
the Board of Directors shall prescribe, shall report to and be
directly responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge
of the Audit Division.
Section 10. There may be one or more officers, subordinate in
rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex
officio hold the office Assistant Secretary of this Company and who
may perform such duties as may be prescribed by the officer in charge
of the department or division to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are
assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books
of the Company and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an
Assistant Secretary, and the seal of the corporation shall be engraved
thereon. Each certificate shall recite that the stock represented
thereby is transferrable only upon the books of the Company by the
holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof.
Duplicate certificates of stock shall be issued only upon giving such
security as may be satisfactory to the Board of Directors or the
Executive Committee.
7
Section 3. The Board of Directors of the Company is authorized
to fix in advance a record date for the determination of the
stockholders entitled to notice of, and to vote at, any meeting of
stockholders and any adjournment thereof, or entitled to receive
payment of any dividend, or to any allotment or rights, or to exercise
any rights in respect of any change, conversion or exchange of capital
stock, or in connection with obtaining the consent of stockholders for
any purpose, which record date shall not be more than 60 nor less than
10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute,
acknowledge and/or deliver and the Secretary or any Assistant
Secretary shall have full power and authority to attest and affix the
corporate seal of the Company to any and all deeds, conveyances,
assignments, releases, contracts, agreements, bonds, notes, mortgages
and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in
any other fiduciary or representative capacity by any and every method
of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of
Directors or the Executive Committee, and any and all such instruments
shall have the same force and validity as though expressly authorized
by the Board of Directors and/or the Executive Committee.
8
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company,
other than salaried officers of the Company, shall be paid such
reasonable honoraria or fees for attending meetings of the Board of
Directors as the Board of Directors may from time to time determine.
Directors and associate directors who serve as members of committees,
other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors
and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact
that he, or a person for whom he is the legal representative, is or
was a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer,
employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred
in defending any proceeding in advance of its final disposition,
PROVIDED, HOWEVER, that the payment of expenses incurred by a Director
officer in his capacity as a Director or officer in advance of the
final disposition of the proceeding shall be made only upon receipt of
an undertaking by the Director or officer to repay all amounts
advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or
otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation
the claimant may file suit to recover the unpaid amount of such claim
9
and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the
Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the
Charter or Act of Incorporation, these By-Laws, agreement, vote of
stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular
or special meeting of the Board of Directors by a vote of the majority
of all the members of the Board of Directors then in office.
10
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1998 By: /s/ James P. Lawler
-----------------------
Name: James P. Lawler
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved
by any state banking authorities. Refer to your appropriate state
banking authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
--------------------------------------------- --------------
Name of Bank
City
in the State of DELAWARE, at the close of business on March 31, 1998.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . . . . . . . . . . . . 180,015
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287,798
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,355,745
Federal funds sold and securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . 124,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 3,896,238
LESS: Allowance for loan and lease losses. . . . . . 61,635
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . . . . . . . . . . . . 3,834,603
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . 134,016
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,444
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . . . . . . . 10
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,264
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215,048
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,189,443
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,183,321
Noninterest-bearing . . . . . . . . 904,511
Interest-bearing. . . . . . . . . . 3,278,810
Federal funds purchased and Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . 558,553
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57,761
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788,000
With original maturity of more than one year . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99,777
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,730,412
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388,458
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . . . 7,955
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459,031
Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . . . . . . . . . . . 6,189,443
</TABLE>
2
EXHIBIT 25(e)
-------------
Registration No.
======================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NORTHWESTERN CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 46-0172280
(State of incorporation) (I.R.S. employer identification no.)
33 Third Street SE
Huron, South Dakota 57350-1605
(Address of principal executive offices) (Zip Code)
Northwestern Corporation Guarantee with respect to
Preferred Securities of Northwestern Capital Financing I
(Title of the indenture securities)
======================================================================
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the
obligor is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust
powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Wilmington and State of Delaware
on the 1st day of July, 1998.
2
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ James P. Lawler
----------------------- ------------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of
the General Assembly of the State of Delaware, entitled "An Act to
Incorporate the Delaware Guarantee and Trust Company", approved March
2, A.D. 1901, and the name of which company was changed to "WILMINGTON
TRUST COMPANY" by an amendment filed in the Office of the Secretary of
State on March 18, A.D. 1903, and the Charter or Act of Incorporation
of which company has been from time to time amended and changed by
merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend
its Charter or Act of Incorporation so that the same as so altered and
amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is
WILMINGTON TRUST COMPANY whose address is Rodney Square North, in
said City. In addition to such principal office, the said
corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at
Milford Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at Ninth
and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and
3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by
this Corporation are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons
might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of
debt, to receive deposits of money, or securities for money,
to buy gold and silver bullion and foreign coins, to buy and
sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for
the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
2
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
3
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of
the Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to vary
or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon
the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when
the Board of Directors shall determine, and in the promotion
of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
4
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or inference
from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes
and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock
shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other
special rights of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and,
subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and
restrictions of such series, including, but without limiting the
generality of the foregoing, the following:
5
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of any series
of the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion
or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
6
all the requirements, if any, with respect to the setting aside
of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this
Article FOURTH, then and not otherwise the holders of Common
Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b) of
this Article FOURTH, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held on
all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason
of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series,
or carrying any right to purchase stock of any class or series,
but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible
into or exchangeable for stock, or carrying any right to purchase
stock, may be issued and disposed of pursuant to resolution of
the Board of Directors to such persons, firms, corporations or
associations, whether such holders or others, and upon such terms
as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series
of Preferred Stock in relation to the relative powers,
preferences and rights of each other series of Preferred Stock
shall, in each case, be as fixed from time to time by the Board
7
of Directors in the resolution or resolutions adopted pursuant to
authority granted in section (b) of this Article FOURTH and the
consent, by class or series vote or otherwise, of the holders of
such of the series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the Board
of Directors of any other series of Preferred Stock whether or
not the powers, preferences and rights of such other series shall
be fixed by the Board of Directors as senior to, or on a parity
with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of
Directors may provide in the resolution or resolutions as to any
series of Preferred Stock adopted pursuant to section (b) of this
Article FOURTH that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
(g) Shares of Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall
be conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the
term of any director at the time in office, and provided further,
that the number of directors constituting the whole Board shall
be twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes,
as nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
8
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason,
and any newly created directorships resulting from any increase
in the directors, may be filled by the Board of Directors, acting
by a majority of the directors then in office, although less than
a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the By-
Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of two-
thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice
in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the Corporation not
less than 14 days nor more than 50 days prior to any meeting of
the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is
given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not
later than the close of the seventh day following the day on
which notice of the meeting was mailed to stockholders. Notice
of nominations which are proposed by the Board of Directors shall
be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number of
shares of stock of the Corporation which are beneficially owned
by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
9
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any
action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the
same powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time
to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional By-
Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for
this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
10
time designated by the Board, and the Directors may keep the
books of the Company outside of the State of Delaware at such
places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested Stockholder
or any Affiliate of any Interested Stockholder of any assets
of the Corporation or any Subsidiary having an aggregate
fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-
thirds of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, considered
for the purpose of this Article FIFTEENTH as one class ("Voting
Shares"). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that some lesser percentage may
11
be specified, by law or in any agreement with any national securities
exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E)
of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation of By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote
on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
(B) which such person or any of its Affiliates or
12
Associates has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority
of any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
13
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter
or Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except to the
extent such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
14
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on
the third Thursday in April each year at the principal office at the
Company or at such other date, time, or place as may be designated by
resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before
said meeting, at his last known address, a written or printed notice
fixing the time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of stockholders
for the transaction of any business, but the holders of a small number
of shares may adjourn, from time to time, without further notice,
until a quorum is secured. At each annual or special meeting of
stockholders, each stockholder shall be entitled to one vote, either
in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for
any such meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two
(72) years shall be nominated for election to the Board of Directors
of the Company, provided, however, that this limitation shall not
apply to any person who was serving as director of the Company on
September 16, 1971.
Section 3. The class of Directors so elected shall hold office
for three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members, or at the call of the
Chairman of the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority
of the directors.
Section 7. A majority of the directors elected and qualified
shall be necessary to constitute a quorum for the transaction of
business at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in
the time or place of any regular meeting, stating the time and place
of such meeting, which shall be mailed not less than two days before
the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect
the successor who shall hold office for the remainder of the full term
of the class of directors in which the vacancy occurred, and until
such director's successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after
its election by the stockholders shall appoint an Executive Committee,
a Trust Committee, an Audit Committee and a Compensation Committee,
and shall elect from its own members a Chairman of the Board of
Directors and a President who may be the same person. The Board of
Directors shall also elect at such meeting a Secretary and a
Treasurer, who may be the same person, may appoint at any time such
other committees and elect or appoint such other officers as it may
deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with
or without cause, any member of any Committee appointed by it or any
associate director or officer elected by it and may appoint or elect
his successor.
Section 12. The Board of Directors may designate an officer to
be in charge of such of the departments or division of the Company as
it may deem advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors
from its own members and who shall hold office during the pleasure of
the Board.
2
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact
all business for and in behalf of the Company that may be brought
before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of
the Chairman of the Executive Committee or at the call of the Chairman
of the Board of Directors. The majority of its members shall be
necessary to constitute a quorum for the transaction of business.
Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its
next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the
Company, and shall direct the disposal of the same, in accordance with
such rules and regulations as the Board of Directors from time to time
make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the
affairs and business of the Company by its directors and officers as
contemplated by these By-Laws any two available members of the
Executive Committee as constituted immediately prior to such disaster
shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than
three members of the Trust Committee is constituted immediately prior
to such disaster shall be available for the transaction of its
business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III
Section 2 hereof. In the event of the unavailability, at such time,
of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company
in accordance with the foregoing provisions of this Section. This By-
Law shall be subject to implementation by Resolutions of the Board of
Directors presently existing or hereafter passed from time to time for
that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of
this Section or to the provisions of any such implementary Resolutions
shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this
section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the
other provisions of these By-Laws.
3
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not
more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of
Directors and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust
funds, in all matters, however, being subject to the approval of the
Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute
a quorum for the transaction of business.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the
Company to whom supervision over the investment of trust funds may be
delegated when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall
hold office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to
the approval of the Board of Directors; it shall consider all matters
brought to its attention by the officer in charge of the Audit
Division, review all reports of examination of the Company made by any
governmental agency or such independent auditor employed for that
purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to
auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for
the transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of
not more than five (5) members who shall be selected by the Board of
4
Directors from its own members who are not officers of the Company and
who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the
management of the Company, major organizational matters, including
salaries and employee benefits and specifically shall administer the
Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment
to Committees of the Company, with the exception of the Executive
Committee, Audit Committee and Compensation Committee, which must be
comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any member
of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absence or
disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside
at all meetings of the Board and shall have such further authority and
powers and shall perform such duties as the Board of Directors may
from time to time confer and direct. He shall also exercise such
powers and perform such duties as may from time to time be agreed upon
between himself and the President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
5
Directors at which the Chairman of the Board shall not be present and
shall have such further authority and powers and shall perform such
duties as the Board of Directors or the Chairman of the Board may from
time to time confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon
him by statute or assigned to him by the Board of Directors in the
absence of the Chairman of the Board the President shall have the
powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry into
effect all legal directions of the Executive Committee and of the
Board of Directors, and shall at all times exercise general
supervision over the interest, affairs and operations of the Company
and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all
the duties of the Chairman of the Board of Directors and/or the
President and such other powers and duties as may from time to time be
assigned to them by the Board of Directors, the Executive Committee,
the Chairman of the Board or the President and by the officer in
charge of the department or division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as
the Committees thereof, to the keeping of accurate minutes of all such
meetings and to recording the same in the minute books of the Company.
In addition to the other notice requirements of these By-Laws and as
may be practicable under the circumstances, all such notices shall be
in writing and mailed well in advance of the scheduled date of any
other meeting. He shall have custody of the corporate seal and shall
affix the same to any documents requiring such corporate seal and to
attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for
the keeping of proper records of the evidence of property or
indebtedness and of all the transactions of the Company. He shall
have general supervision of the expenditures of the Company and shall
report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be
assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate
times a report relating to the general condition and internal
6
operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the
Controller and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to
be in charge of the Audit Division of the Company with such title as
the Board of Directors shall prescribe, shall report to and be
directly responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge
of the Audit Division.
Section 10. There may be one or more officers, subordinate in
rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex
officio hold the office Assistant Secretary of this Company and who
may perform such duties as may be prescribed by the officer in charge
of the department or division to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are
assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books
of the Company and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an
Assistant Secretary, and the seal of the corporation shall be engraved
thereon. Each certificate shall recite that the stock represented
thereby is transferrable only upon the books of the Company by the
holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof.
Duplicate certificates of stock shall be issued only upon giving such
security as may be satisfactory to the Board of Directors or the
Executive Committee.
7
Section 3. The Board of Directors of the Company is authorized
to fix in advance a record date for the determination of the
stockholders entitled to notice of, and to vote at, any meeting of
stockholders and any adjournment thereof, or entitled to receive
payment of any dividend, or to any allotment or rights, or to exercise
any rights in respect of any change, conversion or exchange of capital
stock, or in connection with obtaining the consent of stockholders for
any purpose, which record date shall not be more than 60 nor less than
10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute,
acknowledge and/or deliver and the Secretary or any Assistant
Secretary shall have full power and authority to attest and affix the
corporate seal of the Company to any and all deeds, conveyances,
assignments, releases, contracts, agreements, bonds, notes, mortgages
and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in
any other fiduciary or representative capacity by any and every method
of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of
Directors or the Executive Committee, and any and all such instruments
shall have the same force and validity as though expressly authorized
by the Board of Directors and/or the Executive Committee.
8
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company,
other than salaried officers of the Company, shall be paid such
reasonable honoraria or fees for attending meetings of the Board of
Directors as the Board of Directors may from time to time determine.
Directors and associate directors who serve as members of committees,
other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors
and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact
that he, or a person for whom he is the legal representative, is or
was a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer,
employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred
in defending any proceeding in advance of its final disposition,
PROVIDED, HOWEVER, that the payment of expenses incurred by a Director
officer in his capacity as a Director or officer in advance of the
final disposition of the proceeding shall be made only upon receipt of
an undertaking by the Director or officer to repay all amounts
advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or
otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation
the claimant may file suit to recover the unpaid amount of such claim
9
and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the
Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the
Charter or Act of Incorporation, these By-Laws, agreement, vote of
stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular
or special meeting of the Board of Directors by a vote of the majority
of all the members of the Board of Directors then in office.
10
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1998 By: /s/ James P. Lawler
-----------------------
Name: James P. Lawler
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved
by any state banking authorities. Refer to your appropriate state
banking authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
------------------------------------ ----------
Name of Bank
City
in the State of DELAWARE, at the close of business on March 31, 1998.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . . . . . . . . . . . . 180,015
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287,798
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,355,745
Federal funds sold and securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . 124,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 3,896,238
LESS: Allowance for loan and lease losses. . . . . . 61,635
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . . . . . . . . . . . 3,834,603
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . 134,016
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,444
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . . . . . . . . . 10
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,264
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215,048
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,189,443
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,183,321
Noninterest-bearing . . . . . . . . 904,511
Interest-bearing. . . . . . . . . . 3,278,810
Federal funds purchased and Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . 558,553
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57,761
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788,000
With original maturity of more than one year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99,777
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,730,412
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388,458
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . . . . 7,955
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459,031
Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . . . . . . . . . . 6,189,443
</TABLE>
-2-
EXHIBIT 25(f)
-------------
Registration No.
======================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NORTHWESTERN CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 46-0172280
(State of incorporation) (I.R.S. employer identification no.)
33 Third Street SE
Huron, South Dakota 57350-1605
(Address of principal executive offices) (Zip Code)
Northwestern Corporation Guarantee with respect to
Preferred Securities of Northwestern Capital Financing II
(Title of the indenture securities)
======================================================================
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the
obligor is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Wilmington and State of Delaware
on the 1st day of July, 1998.
2
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ James P. Lawler
--------------------------- ------------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
Wilmington Trust Company, originally incorporated by an Act of
the General Assembly of the State of Delaware, entitled "An Act to
Incorporate the Delaware Guarantee and Trust Company", approved March
2, A.D. 1901, and the name of which company was changed to "WILMINGTON
TRUST COMPANY" by an amendment filed in the Office of the Secretary of
State on March 18, A.D. 1903, and the Charter or Act of Incorporation
of which company has been from time to time amended and changed by
merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend
its Charter or Act of Incorporation so that the same as so altered and
amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is
WILMINGTON TRUST COMPANY whose address is Rodney Square North, in
said City. In addition to such principal office, the said
corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at
Milford Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at Ninth
and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and
3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by
this Corporation are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons
might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of
debt, to receive deposits of money, or securities for money,
to buy gold and silver bullion and foreign coins, to buy and
sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for
the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
2
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
3
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of
the Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to vary
or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon
the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when
the Board of Directors shall determine, and in the promotion
of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
4
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or inference
from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes
and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock
shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other
special rights of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and,
subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and
restrictions of such series, including, but without limiting the
generality of the foregoing, the following:
5
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of any series
of the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion
or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
6
all the requirements, if any, with respect to the setting aside
of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this
Article FOURTH, then and not otherwise the holders of Common
Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b) of
this Article FOURTH, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held on
all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason
of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series,
or carrying any right to purchase stock of any class or series,
but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible
into or exchangeable for stock, or carrying any right to purchase
stock, may be issued and disposed of pursuant to resolution of
the Board of Directors to such persons, firms, corporations or
associations, whether such holders or others, and upon such terms
as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series
of Preferred Stock in relation to the relative powers,
preferences and rights of each other series of Preferred Stock
shall, in each case, be as fixed from time to time by the Board
7
of Directors in the resolution or resolutions adopted pursuant to
authority granted in section (b) of this Article FOURTH and the
consent, by class or series vote or otherwise, of the holders of
such of the series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the Board
of Directors of any other series of Preferred Stock whether or
not the powers, preferences and rights of such other series shall
be fixed by the Board of Directors as senior to, or on a parity
with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of
Directors may provide in the resolution or resolutions as to any
series of Preferred Stock adopted pursuant to section (b) of this
Article FOURTH that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
(g) Shares of Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall
be conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the
term of any director at the time in office, and provided further,
that the number of directors constituting the whole Board shall
be twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes,
as nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
8
annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason,
and any newly created directorships resulting from any increase
in the directors, may be filled by the Board of Directors, acting
by a majority of the directors then in office, although less than
a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the By-
Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of two-
thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice
in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the Corporation not
less than 14 days nor more than 50 days prior to any meeting of
the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is
given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not
later than the close of the seventh day following the day on
which notice of the meeting was mailed to stockholders. Notice
of nominations which are proposed by the Board of Directors shall
be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number of
shares of stock of the Corporation which are beneficially owned
by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
9
made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any
action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the
same powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time
to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional By-
Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for
this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
10
time designated by the Board, and the Directors may keep the
books of the Company outside of the State of Delaware at such
places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested Stockholder
or any Affiliate of any Interested Stockholder of any assets
of the Corporation or any Subsidiary having an aggregate
fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-
thirds of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, considered
for the purpose of this Article FIFTEENTH as one class ("Voting
Shares"). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that some lesser percentage may
11
be specified, by law or in any agreement with any national securities
exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E)
of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation of By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote
on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
(B) which such person or any of its Affiliates or
12
Associates has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority
of any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
13
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter
or Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except to the
extent such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
14
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on
the third Thursday in April each year at the principal office at the
Company or at such other date, time, or place as may be designated by
resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before
said meeting, at his last known address, a written or printed notice
fixing the time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of stockholders
for the transaction of any business, but the holders of a small number
of shares may adjourn, from time to time, without further notice,
until a quorum is secured. At each annual or special meeting of
stockholders, each stockholder shall be entitled to one vote, either
in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for
any such meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two
(72) years shall be nominated for election to the Board of Directors
of the Company, provided, however, that this limitation shall not
apply to any person who was serving as director of the Company on
September 16, 1971.
Section 3. The class of Directors so elected shall hold office
for three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members, or at the call of the
Chairman of the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority
of the directors.
Section 7. A majority of the directors elected and qualified
shall be necessary to constitute a quorum for the transaction of
business at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in
the time or place of any regular meeting, stating the time and place
of such meeting, which shall be mailed not less than two days before
the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect
the successor who shall hold office for the remainder of the full term
of the class of directors in which the vacancy occurred, and until
such director's successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after
its election by the stockholders shall appoint an Executive Committee,
a Trust Committee, an Audit Committee and a Compensation Committee,
and shall elect from its own members a Chairman of the Board of
Directors and a President who may be the same person. The Board of
Directors shall also elect at such meeting a Secretary and a
Treasurer, who may be the same person, may appoint at any time such
other committees and elect or appoint such other officers as it may
deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with
or without cause, any member of any Committee appointed by it or any
associate director or officer elected by it and may appoint or elect
his successor.
Section 12. The Board of Directors may designate an officer to
be in charge of such of the departments or division of the Company as
it may deem advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors
from its own members and who shall hold office during the pleasure of
the Board.
2
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact
all business for and in behalf of the Company that may be brought
before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of
the Chairman of the Executive Committee or at the call of the Chairman
of the Board of Directors. The majority of its members shall be
necessary to constitute a quorum for the transaction of business.
Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its
next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the
Company, and shall direct the disposal of the same, in accordance with
such rules and regulations as the Board of Directors from time to time
make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the
affairs and business of the Company by its directors and officers as
contemplated by these By-Laws any two available members of the
Executive Committee as constituted immediately prior to such disaster
shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than
three members of the Trust Committee is constituted immediately prior
to such disaster shall be available for the transaction of its
business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III
Section 2 hereof. In the event of the unavailability, at such time,
of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company
in accordance with the foregoing provisions of this Section. This By-
Law shall be subject to implementation by Resolutions of the Board of
Directors presently existing or hereafter passed from time to time for
that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of
this Section or to the provisions of any such implementary Resolutions
shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this
section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the
other provisions of these By-Laws.
3
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not
more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of
Directors and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust
funds, in all matters, however, being subject to the approval of the
Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute
a quorum for the transaction of business.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the
Company to whom supervision over the investment of trust funds may be
delegated when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall
hold office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to
the approval of the Board of Directors; it shall consider all matters
brought to its attention by the officer in charge of the Audit
Division, review all reports of examination of the Company made by any
governmental agency or such independent auditor employed for that
purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to
auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for
the transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of
not more than five (5) members who shall be selected by the Board of
4
Directors from its own members who are not officers of the Company and
who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the
management of the Company, major organizational matters, including
salaries and employee benefits and specifically shall administer the
Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment
to Committees of the Company, with the exception of the Executive
Committee, Audit Committee and Compensation Committee, which must be
comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any member
of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absence or
disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside
at all meetings of the Board and shall have such further authority and
powers and shall perform such duties as the Board of Directors may
from time to time confer and direct. He shall also exercise such
powers and perform such duties as may from time to time be agreed upon
between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
5
Directors at which the Chairman of the Board shall not be present and
shall have such further authority and powers and shall perform such
duties as the Board of Directors or the Chairman of the Board may from
time to time confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon
him by statute or assigned to him by the Board of Directors in the
absence of the Chairman of the Board the President shall have the
powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry into
effect all legal directions of the Executive Committee and of the
Board of Directors, and shall at all times exercise general
supervision over the interest, affairs and operations of the Company
and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all
the duties of the Chairman of the Board of Directors and/or the
President and such other powers and duties as may from time to time be
assigned to them by the Board of Directors, the Executive Committee,
the Chairman of the Board or the President and by the officer in
charge of the department or division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as
the Committees thereof, to the keeping of accurate minutes of all such
meetings and to recording the same in the minute books of the Company.
In addition to the other notice requirements of these By-Laws and as
may be practicable under the circumstances, all such notices shall be
in writing and mailed well in advance of the scheduled date of any
other meeting. He shall have custody of the corporate seal and shall
affix the same to any documents requiring such corporate seal and to
attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for
the keeping of proper records of the evidence of property or
indebtedness and of all the transactions of the Company. He shall
have general supervision of the expenditures of the Company and shall
report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be
assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate
times a report relating to the general condition and internal
6
operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the
Controller and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to
be in charge of the Audit Division of the Company with such title as
the Board of Directors shall prescribe, shall report to and be
directly responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge
of the Audit Division.
Section 10. There may be one or more officers, subordinate in
rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex
officio hold the office Assistant Secretary of this Company and who
may perform such duties as may be prescribed by the officer in charge
of the department or division to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are
assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books
of the Company and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an
Assistant Secretary, and the seal of the corporation shall be engraved
thereon. Each certificate shall recite that the stock represented
thereby is transferrable only upon the books of the Company by the
holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof.
Duplicate certificates of stock shall be issued only upon giving such
security as may be satisfactory to the Board of Directors or the
Executive Committee.
7
Section 3. The Board of Directors of the Company is authorized
to fix in advance a record date for the determination of the
stockholders entitled to notice of, and to vote at, any meeting of
stockholders and any adjournment thereof, or entitled to receive
payment of any dividend, or to any allotment or rights, or to exercise
any rights in respect of any change, conversion or exchange of capital
stock, or in connection with obtaining the consent of stockholders for
any purpose, which record date shall not be more than 60 nor less than
10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute,
acknowledge and/or deliver and the Secretary or any Assistant
Secretary shall have full power and authority to attest and affix the
corporate seal of the Company to any and all deeds, conveyances,
assignments, releases, contracts, agreements, bonds, notes, mortgages
and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in
any other fiduciary or representative capacity by any and every method
of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of
Directors or the Executive Committee, and any and all such instruments
shall have the same force and validity as though expressly authorized
by the Board of Directors and/or the Executive Committee.
8
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company,
other than salaried officers of the Company, shall be paid such
reasonable honoraria or fees for attending meetings of the Board of
Directors as the Board of Directors may from time to time determine.
Directors and associate directors who serve as members of committees,
other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors
and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact
that he, or a person for whom he is the legal representative, is or
was a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer,
employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred
in defending any proceeding in advance of its final disposition,
PROVIDED, HOWEVER, that the payment of expenses incurred by a Director
officer in his capacity as a Director or officer in advance of the
final disposition of the proceeding shall be made only upon receipt of
an undertaking by the Director or officer to repay all amounts
advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or
otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation
the claimant may file suit to recover the unpaid amount of such claim
9
and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the
Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the
Charter or Act of Incorporation, these By-Laws, agreement, vote of
stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular
or special meeting of the Board of Directors by a vote of the majority
of all the members of the Board of Directors then in office.
10
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1998 By: /s/ James P. Lawler
-------------------------
Name: James P. Lawler
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been
approved by any state banking authorities. Refer to your
appropriate state banking authorities for your state publication
requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
------------------------ ----------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1998.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . . . . . . . . . . . . 180,015
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287,798
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,355,745
Federal funds sold and securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . 124,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 3,896,238
LESS: Allowance for loan and lease losses. . . . . . 61,635
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . . . . . . . . . . . . 3,834,603
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . 134,016
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,444
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . . . . . . . 10
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,264
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215,048
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,189,443
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,183,321
Noninterest-bearing . . . . . . . . 904,511
Interest-bearing. . . . . . . . . . 3,278,810
Federal funds purchased and Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . 558,553
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57,761
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788,000
With original maturity of more than one year . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99,777
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,730,412
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388,458
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . . . 7,955
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459,031
Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . . . . . . . . . . . 6,189,443
</TABLE>
2
EXHIBIT 25(g)
-------------
Registration No.
======================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) X
--
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NORTHWESTERN CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 46-0172280
(State of incorporation) (I.R.S. employer identification no.)
33 Third Street SE
Huron, South Dakota 57350-1605
(Address of principal executive offices) (Zip Code)
Northwestern Corporation Guarantee with respect to
Preferred Securities of Northwestern Capital Financing III
(Title of the indenture securities)
======================================================================
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the
obligor is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Wilmington and State of Delaware
on the 1st day of July, 1998.
2
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ W. Chris Sponenberg By: /s/ James P. Lawler
----------------------- -----------------------
Assistant Secretary Name: James P. Lawler
Title: Vice President
3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of
the General Assembly of the State of Delaware, entitled "An Act to
Incorporate the Delaware Guarantee and Trust Company", approved March
2, A.D. 1901, and the name of which company was changed to "WILMINGTON
TRUST COMPANY" by an amendment filed in the Office of the Secretary of
State on March 18, A.D. 1903, and the Charter or Act of Incorporation
of which company has been from time to time amended and changed by
merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend
its Charter or Act of Incorporation so that the same as so altered and
amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is
WILMINGTON TRUST COMPANY whose address is Rodney Square North, in
said City. In addition to such principal office, the said
corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at
Milford Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at Ninth
and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and
3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by
this Corporation are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons
might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, purchase, convey, mortgage or
otherwise deal in real and personal estate and property, and
to appoint such officers and agents as the business of the
Corporation shall require, to make by-laws not inconsistent
with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of
debt, to receive deposits of money, or securities for money,
to buy gold and silver bullion and foreign coins, to buy and
sell bills of exchange, and generally to use, exercise and
enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for
the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute all
papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property
of every sort and kind, from executors, administrators,
guardians, public officers, courts, receivers, assignees,
trustees, and from all fiduciaries, and from all other
persons and individuals, and from all corporations whether
state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two
parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
2
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding
places of responsibility or trust; to become surety for any
person, or persons, for the faithful performance of any
trust, office, duty, contract or agreement, either by itself
or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity in the receiving, holding,
managing, and disposing of any and all estates and property,
real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee
in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority,
in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other
trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without
the State of Delaware, or of the Government of the United
States, or of any state, territory, colony, or possession
thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages,
3
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys of
the Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to vary
or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon
the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when
the Board of Directors shall determine, and in the promotion
of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to the
same extent as natural persons might or could do, and in any
part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw, make,
accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
4
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or inference
from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes
and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes
and powers.
FOURTH: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue is forty-one
million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock
shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other
special rights of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and,
subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and
restrictions of such series, including, but without limiting the
generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
5
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same
or other class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of
such series to convert the same into or exchange the same
for, shares of any other class or classes or of any series
of the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion
or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions
on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of
such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall
have been met and after the Corporation shall have complied with
all the requirements, if any, with respect to the setting aside
6
of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this
Article FOURTH, then and not otherwise the holders of Common
Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b) of
this Article FOURTH, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held on
all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason
of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series,
or carrying any right to purchase stock of any class or series,
but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible
into or exchangeable for stock, or carrying any right to purchase
stock, may be issued and disposed of pursuant to resolution of
the Board of Directors to such persons, firms, corporations or
associations, whether such holders or others, and upon such terms
as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series
of Preferred Stock in relation to the relative powers,
preferences and rights of each other series of Preferred Stock
shall, in each case, be as fixed from time to time by the Board
of Directors in the resolution or resolutions adopted pursuant to
7
authority granted in section (b) of this Article FOURTH and the
consent, by class or series vote or otherwise, of the holders of
such of the series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the Board
of Directors of any other series of Preferred Stock whether or
not the powers, preferences and rights of such other series shall
be fixed by the Board of Directors as senior to, or on a parity
with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of
Directors may provide in the resolution or resolutions as to any
series of Preferred Stock adopted pursuant to section (b) of this
Article FOURTH that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
(g) Shares of Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be increased
or decreased from time to time by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to
vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall
be conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than
five nor more than twenty-five as fixed from time to time by vote
of a majority of the whole Board, provided, however, that the
number of directors shall not be reduced so as to shorten the
term of any director at the time in office, and provided further,
that the number of directors constituting the whole Board shall
be twenty-four until otherwise fixed by a majority of the whole
Board.
(b) The Board of Directors shall be divided into three classes,
as nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of
one class expiring each year. At the annual meeting of
stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to
8
hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason,
and any newly created directorships resulting from any increase
in the directors, may be filled by the Board of Directors, acting
by a majority of the directors then in office, although less than
a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to hold
office until the next election of the class for which such
director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors
shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act
of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the By-
Laws of the Corporation), any director or the entire Board of
Directors of the Corporation may be removed at any time without
cause, but only by the affirmative vote of the holders of two-
thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice
in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the Corporation not
less than 14 days nor more than 50 days prior to any meeting of
the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is
given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not
later than the close of the seventh day following the day on
which notice of the meeting was mailed to stockholders. Notice
of nominations which are proposed by the Board of Directors shall
be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number of
shares of stock of the Corporation which are beneficially owned
by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should
9
so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may
be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any
action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from time
to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the
same powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time
to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional By-
Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for
this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the
10
books of the Company outside of the State of Delaware at such
places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b)
and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested Stockholder
or any Affiliate of any Interested Stockholder of any assets
of the Corporation or any Subsidiary having an aggregate
fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-
thirds of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, considered
for the purpose of this Article FIFTEENTH as one class ("Voting
Shares"). Such affirmative vote shall be required notwithstanding the
11
fact that no vote may be required, or that some lesser percentage may
be specified, by law or in any agreement with any national securities
exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E)
of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business
combination and such business combination shall require only
such affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation of By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote
on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own, directly
or indirectly, or
12
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority
of any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect in December 31, 1981) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty
to determine for the purposes of this Article FIFTEENTH on
the basis of information known to them, (1) the number of
Voting Shares beneficially owned by any person (2) whether a
person is an Affiliate or Associate of another, (3) whether
a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or
any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
13
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter
or Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this
Charter or Act of Incorporation by the By-Laws), the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter or repeal
any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except to the
extent such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Laws as the same
exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
14
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on
the third Thursday in April each year at the principal office at the
Company or at such other date, time, or place as may be designated by
resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be called at
any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10) days before
said meeting, at his last known address, a written or printed notice
fixing the time and place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of stockholders
for the transaction of any business, but the holders of a small number
of shares may adjourn, from time to time, without further notice,
until a quorum is secured. At each annual or special meeting of
stockholders, each stockholder shall be entitled to one vote, either
in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for
any such meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two
(72) years shall be nominated for election to the Board of Directors
of the Company, provided, however, that this limitation shall not
apply to any person who was serving as director of the Company on
September 16, 1971.
Section 3. The class of Directors so elected shall hold office
for three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members, or at the call of the
Chairman of the Board of Directors or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority
of the directors.
Section 7. A majority of the directors elected and qualified
shall be necessary to constitute a quorum for the transaction of
business at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director
of any special meeting of the Board of Directors, and of any change in
the time or place of any regular meeting, stating the time and place
of such meeting, which shall be mailed not less than two days before
the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect
the successor who shall hold office for the remainder of the full term
of the class of directors in which the vacancy occurred, and until
such director's successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after
its election by the stockholders shall appoint an Executive Committee,
a Trust Committee, an Audit Committee and a Compensation Committee,
and shall elect from its own members a Chairman of the Board of
Directors and a President who may be the same person. The Board of
Directors shall also elect at such meeting a Secretary and a
Treasurer, who may be the same person, may appoint at any time such
other committees and elect or appoint such other officers as it may
deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with
or without cause, any member of any Committee appointed by it or any
associate director or officer elected by it and may appoint or elect
his successor.
Section 12. The Board of Directors may designate an officer to
be in charge of such of the departments or division of the Company as
it may deem advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors
from its own members and who shall hold office during the pleasure of
the Board.
2
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact
all business for and in behalf of the Company that may be brought
before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such
times to be determined by a majority of its members, or at the call of
the Chairman of the Executive Committee or at the call of the Chairman
of the Board of Directors. The majority of its members shall be
necessary to constitute a quorum for the transaction of business.
Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its
next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the
Company, and shall direct the disposal of the same, in accordance with
such rules and regulations as the Board of Directors from time to time
make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the
affairs and business of the Company by its directors and officers as
contemplated by these By-Laws any two available members of the
Executive Committee as constituted immediately prior to such disaster
shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than
three members of the Trust Committee is constituted immediately prior
to such disaster shall be available for the transaction of its
business, such Executive Committee shall also be empowered to exercise
all of the powers reserved to the Trust Committee under Article III
Section 2 hereof. In the event of the unavailability, at such time,
of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company
in accordance with the foregoing provisions of this Section. This By-
Law shall be subject to implementation by Resolutions of the Board of
Directors presently existing or hereafter passed from time to time for
that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of
this Section or to the provisions of any such implementary Resolutions
shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this
section that it shall be to the advantage of the Company to resume the
conduct and management of its affairs and business under all of the
other provisions of these By-Laws.
3
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not
more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of
Directors and who shall hold office during the pleasure of the Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust
funds, in all matters, however, being subject to the approval of the
Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members or at the call of its
chairman. A majority of its members shall be necessary to constitute
a quorum for the transaction of business.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the
Company to whom supervision over the investment of trust funds may be
delegated when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall
hold office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however subject to
the approval of the Board of Directors; it shall consider all matters
brought to its attention by the officer in charge of the Audit
Division, review all reports of examination of the Company made by any
governmental agency or such independent auditor employed for that
purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to
auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for
the transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of
not more than five (5) members who shall be selected by the Board of
4
Directors from its own members who are not officers of the Company and
who shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought to
its attention by the management and from time to time review the
management of the Company, major organizational matters, including
salaries and employee benefits and specifically shall administer the
Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve
during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all
matters brought to the Board, with the exception that he would have no
right to vote. An associate director will be eligible for appointment
to Committees of the Company, with the exception of the Executive
Committee, Audit Committee and Compensation Committee, which must be
comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any member
of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absence or
disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside
at all meetings of the Board and shall have such further authority and
powers and shall perform such duties as the Board of Directors may
from time to time confer and direct. He shall also exercise such
powers and perform such duties as may from time to time be agreed upon
between himself and the President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of
5
Directors at which the Chairman of the Board shall not be present and
shall have such further authority and powers and shall perform such
duties as the Board of Directors or the Chairman of the Board may from
time to time confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon
him by statute or assigned to him by the Board of Directors in the
absence of the Chairman of the Board the President shall have the
powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry into
effect all legal directions of the Executive Committee and of the
Board of Directors, and shall at all times exercise general
supervision over the interest, affairs and operations of the Company
and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all
the duties of the Chairman of the Board of Directors and/or the
President and such other powers and duties as may from time to time be
assigned to them by the Board of Directors, the Executive Committee,
the Chairman of the Board or the President and by the officer in
charge of the department or division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as
the Committees thereof, to the keeping of accurate minutes of all such
meetings and to recording the same in the minute books of the Company.
In addition to the other notice requirements of these By-Laws and as
may be practicable under the circumstances, all such notices shall be
in writing and mailed well in advance of the scheduled date of any
other meeting. He shall have custody of the corporate seal and shall
affix the same to any documents requiring such corporate seal and to
attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for
the keeping of proper records of the evidence of property or
indebtedness and of all the transactions of the Company. He shall
have general supervision of the expenditures of the Company and shall
report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be
assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate
times a report relating to the general condition and internal
6
operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the
Controller and such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to
be in charge of the Audit Division of the Company with such title as
the Board of Directors shall prescribe, shall report to and be
directly responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge
of the Audit Division.
Section 10. There may be one or more officers, subordinate in
rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex
officio hold the office Assistant Secretary of this Company and who
may perform such duties as may be prescribed by the officer in charge
of the department or division to whom they are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are
assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books
of the Company and a transfer book shall be kept in which all
transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an
Assistant Secretary, and the seal of the corporation shall be engraved
thereon. Each certificate shall recite that the stock represented
thereby is transferrable only upon the books of the Company by the
holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof.
Duplicate certificates of stock shall be issued only upon giving such
security as may be satisfactory to the Board of Directors or the
Executive Committee.
7
Section 3. The Board of Directors of the Company is authorized
to fix in advance a record date for the determination of the
stockholders entitled to notice of, and to vote at, any meeting of
stockholders and any adjournment thereof, or entitled to receive
payment of any dividend, or to any allotment or rights, or to exercise
any rights in respect of any change, conversion or exchange of capital
stock, or in connection with obtaining the consent of stockholders for
any purpose, which record date shall not be more than 60 nor less than
10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar
year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute,
acknowledge and/or deliver and the Secretary or any Assistant
Secretary shall have full power and authority to attest and affix the
corporate seal of the Company to any and all deeds, conveyances,
assignments, releases, contracts, agreements, bonds, notes, mortgages
and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in
any other fiduciary or representative capacity by any and every method
of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of
Directors or the Executive Committee, and any and all such instruments
shall have the same force and validity as though expressly authorized
by the Board of Directors and/or the Executive Committee.
8
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company,
other than salaried officers of the Company, shall be paid such
reasonable honoraria or fees for attending meetings of the Board of
Directors as the Board of Directors may from time to time determine.
Directors and associate directors who serve as members of committees,
other than salaried employees of the Company, shall be paid such
reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors
and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed
reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact
that he, or a person for whom he is the legal representative, is or
was a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer,
employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred
in defending any proceeding in advance of its final disposition,
PROVIDED, HOWEVER, that the payment of expenses incurred by a Director
officer in his capacity as a Director or officer in advance of the
final disposition of the proceeding shall be made only upon receipt of
an undertaking by the Director or officer to repay all amounts
advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or
otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days
after a written claim therefor has been received by the Corporation
the claimant may file suit to recover the unpaid amount of such claim
9
and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the
Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the
Charter or Act of Incorporation, these By-Laws, agreement, vote of
stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular
or special meeting of the Board of Directors by a vote of the majority
of all the members of the Board of Directors then in office.
10
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 1, 1998 By: /s/ James P. Lawler
----------------------
Name: James P. Lawler
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved
by any state banking authorities. Refer to your appropriate state
banking authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
----------------------------------------- ----------
Name of Bank
City
in the State of DELAWARE, at the close of business on March 31, 1998.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . . . . . . . . . . . . 180,015
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287,798
Available-for-sale securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,355,745
Federal funds sold and securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . 124,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 3,896,238
LESS: Allowance for loan and lease losses. . . . . . 61,635
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . . . . . . . . . . . . 3,834,603
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . 134,016
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,444
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . . . . . . . . . . . . . . 10
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,264
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215,048
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,189,443
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,183,321
Noninterest-bearing . . . . . . . . 904,511
Interest-bearing. . . . . . . . . . 3,278,810
Federal funds purchased and Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . 558,553
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57,761
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788,000
With original maturity of more than one year . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,000
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99,777
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,730,412
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . . . . . . . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388,458
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . . . . . . . . . . . . . 7,955
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459,031
Total liabilities, limited-life preferred stock, and equity capital . . . . . . . . . . . . . . . . . . . . . 6,189,443
</TABLE>
2
