EXHIBIT 4(f)
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of November 15, 1998
(this "Second Supplemental Indenture"), between NorthWestern
Corporation, a Delaware corporation (the "Company"), and The Chase
Manhattan Bank, as trustee (the "Trustee") under the Indenture dated
as of August 1, 1995 between the Company and the Trustee (such
Indenture, as supplemented by the First Supplemental Indenture thereto
dated as of August 1, 1995 and as further supplemented by this Second
Supplemental Indenture, the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of the Company's
subordinated debt securities, to be issued from time to time in one or
more series as might be determined by the Company under the Indenture,
in an unlimited aggregate principal amount which may be authenticated
and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its
Securities to be known as its 7.20% Junior Subordinated Deferrable
Interest Debentures due 2038 (the "Subordinated Debentures"), the form
and substance of such Subordinated Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the
Indenture and this Second Supplemental Indenture;
WHEREAS, NorthWestern Capital Financing I, a Delaware
statutory business trust (the "Trust"), has offered to the public
$55,000,000 aggregate liquidation amount of its 7.20% Trust Preferred
Capital Securities (the "Preferred Securities") and has offered to the
Company $1,701,050 in aggregate liquidation amount of the Trust's
common securities, each representing undivided beneficial interests in
the assets of the Trust, and proposes to invest the proceeds from such
offerings in $56,701,050 aggregate principal amount of the
Subordinated Debentures; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this Second Supplemental Indenture, and all requirements
necessary to make this Second Supplemental Indenture a valid
instrument in accordance with its terms (and to make the Subordinated
Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company) have
been performed, and the execution and delivery of this Second
Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and
acceptance of the Subordinated Debentures by the Holders thereof, and
for the purpose of setting forth, as provided in the Indenture, the
form and substance of the Subordinated Debentures and the terms,
provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term not defined herein that is defined in the Indenture
has the same meaning when used in this Second Supplemental
Indenture;
(b) a term defined anywhere in this Second Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the Trust shall be deemed to be an "NWPS Trust" for purposes
of the Indenture;
(g) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Clearing Agency; (iii)
Delaware Trustee; (iv) Distribution; (v) Property Trustee;
(vi) Preferred Securities Guarantee; (vii) Preferred
Security Certificate; and (viii) Regular Trustees; and
(h) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" has the meaning specified in Section 2.5(c).
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated as of November 18, 1998, as amended or restated from
time to time.
"Direct Action" has the meaning specified in Section 10.2.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Tax Event or an Investment Company Event or at the
option of the Company, the Trust is to be dissolved in accordance with
the Declaration, and the Subordinated Debentures held by the Property
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Trustee are to be distributed to the holders of the Trust Securities
issued by the Trust pro rata in accordance with the Declaration.
"Investment Company Event" means the receipt by the Trust of an
opinion of counsel to the Company experienced in such matters to the
effect that, as a result of the occurrence of a change in law or
regulation or a written change (including any announced prospective
change) in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority,
there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be registered
under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or
after the date of the issuance of the Subordinated Debentures.
"Scheduled Maturity Date" has the meaning specified in Section 2.2.
"Senior Indebtedness" means (i) the principal, premium, if any, and
interest in respect of (A) indebtedness of the Company for money
borrowed and (B) indebtedness evidenced by securities, debentures,
bonds or other similar instruments issued by the Company, including,
without limitation, all obligations under its General Mortgage and
Deed of Trust dated as of August 1, 1993 between the Company and The
Chase Manhattan Bank, as successor to The Chase Manhattan Bank, N.A.,
as trustee, and the Indenture dated as of November 1, 1998 between the
Company and The Chase Manhattan Bank, as trustee; (ii) all capital
lease obligations of the Company; (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all
conditional sale obligations of the Company and all obligations of the
Company under any title retention agreement (but excluding trade
accounts payable arising in the ordinary course of business); (iv) all
obligations of the Company for the reimbursement on any letter of
credit, banker's acceptance, security purchase facility or similar
credit transaction; (v) all obligations of the type referred to in
clauses (i) through (iv) of other Persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise;
and (vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons secured by any lien on any property or
asset of the Company (whether or not such obligation is assumed by the
Company), except for (a) any such indebtedness that is by its terms
subordinated to or pari passu with the Subordinated Debentures and (b)
any indebtedness between or among the Company and its Affiliates,
including all other debt securities and guarantees in respect of those
debt securities, issued to any other trust, or a trustee of such
trust, partnership or other entity affiliated with the Company which
is a financing vehicle of the Company ("Financing Entity") in
connection with the issuance by such Financing Entity of preferred
securities or other securities that rank pari passu with, or junior
to, the Preferred Securities.
"Tax Event" means the receipt by the Trust of an opinion of counsel to
the Company experienced in such matters to the effect that, as a
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result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the
date of issuance of the Subordinated Debentures, there is more than an
insubstantial risk that (i) the Trust is or will be within 90 days of
the delivery of such opinion, subject to United States federal income
tax with respect to interest received or accrued on the Subordinated
Debentures, (ii) interest payable by the Company on the Subordinated
Debentures is not, or within 90 days of the delivery of such opinion
will not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes, or (iii) the Trust is, or
will be within 90 days of the delivery of such opinion, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the
"7.20% Junior Subordinated Deferrable Interest Debentures due 2038,"
limited in aggregate principal amount to $56,701,050, which amount
shall be as set forth in any written Company Order for the
authentication and delivery of Subordinated Debentures pursuant to
Section 303 of the Indenture.
SECTION 2.2. Maturity.
(a) The Scheduled Maturity Date will be December 31, 2038.
(b) If a Tax Event described in clause (ii) of the definition of
"Tax Event" occurs, the Company will have the right, prior
to the dissolution of the Trust, to accelerate the Scheduled
Maturity Date to the minimum extent required so that
interest on the Subordinated Debentures will be deductible
for United States federal income tax purposes, but in no
event may the Scheduled Maturity Date be accelerated to be
earlier than November 18, 2013. The Scheduled Maturity Date
may be accelerated pursuant to this Section 2.2(b) only if
the Company shall have received an Opinion of Counsel
experienced in such matters to the effect that (i) following
such acceleration, interest paid on the Subordinated
Debentures will be deductible for United States federal
income tax purposes and (ii) the holders of the Preferred
Securities will not recognize income, gain or loss for
United States federal income tax purposes as a result of
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such acceleration and will be subject to United States
federal income tax in the same amount, in the same manner
and at the same times as would have been the case if such
acceleration had not occurred.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Subordinated Debentures shall
be issued as Registered Securities in fully registered certificated
form without interest coupons. Principal of and interest on the
Subordinated Debentures issued in certificated form will be payable,
the transfer of such Subordinated Debentures will be registrable and
such Subordinated Debentures will be exchangeable for Subordinated
Debentures bearing identical terms and provisions at the office or
agency of the Trustee; provided, however, that payment of interest may
be made at the option of the Company by check mailed to the Holder at
such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of any
Subordinated Debentures is the Property Trustee, the payment of the
principal of and interest (including Compounded Interest and
Additional Sums, if any) on such Subordinated Debentures held by the
Property Trustee will be made at such place and to such account as may
be designated by the Property Trustee.
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event:
(i) The Subordinated Debentures in certificated form may be
presented to the Trustee by the Property Trustee in
exchange for a global Subordinated Debenture in an
aggregate principal amount equal to all Outstanding
Subordinated Debentures (a "Global Debenture"), to be
registered in the name of The Depository Trust Company
(the "Depository"), or its nominee, and delivered by
the Trustee to the Depository or a custodian appointed
by the Depository for crediting to the accounts of its
participants pursuant to the instructions of the
Regular Trustees. The Company upon any such
presentation shall execute a Global Debenture in such
aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance
with the Indenture and this Second Supplemental
Indenture. Payments on the Subordinated Debentures
issued as a Global Debenture will be made to the
Depository.
(ii) If any Preferred Securities are held in non book-entry
certificated form, the Subordinated Debentures in
certificated form may be presented to the Trustee by
the Property Trustee, and any Preferred Security
Certificate which represents Preferred Securities other
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than Preferred Securities held by the Depository or its
nominee ("Non Book-Entry Preferred Securities") will be
deemed to represent beneficial interests in
Subordinated Debentures presented to the Trustee by the
Property Trustee having an aggregate principal amount
equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities until such Preferred
Security Certificates are presented to the Security
Registrar for transfer or reissuance, at which time
such Preferred Security Certificates will be canceled
and a Subordinated Debenture registered in the name of
the holder of the Preferred Security Certificate or the
transferee of the holder of such Preferred Security
Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation
amount of the Preferred Security Certificate canceled
will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance
with the Indenture and this Second Supplemental
Indenture. On issue of such Subordinated Debentures,
Subordinated Debentures with an equivalent aggregate
principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been
canceled.
(b) A Global Debenture may be transferred, in whole but not in
part, only by the Depository to a nominee of the Depository,
by a nominee of the Depository to another nominee of the
Depository, or by the Depository or such nominee to a
successor Depository selected or approved by the Company or
to a nominee of such successor Depository.
(c) If at any time the Depository notifies the Company that it
is unwilling or unable to continue as Depository for the
Subordinated Debentures or if at any time the Depository
ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, at a time the Depository
is required to be so registered, and a successor Depository
is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such
condition, as the case may be, the Company will execute,
and, subject to Article Two of the Indenture, the Trustee
will authenticate and deliver, the Subordinated Debentures
in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for
such Global Debenture. In addition, if at any time the
Company determine that the Subordinated Debentures shall no
longer be represented by a Global Debenture or there shall
have occurred an Event of Default, the Company will execute,
and, subject to receipt of a certificate evidencing such
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determination by the Company, the Trustee will authenticate
and deliver, the Subordinated Debentures in definitive
registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for
such Global Debenture. Upon the exchange of the Global
Debenture for such Subordinated Debentures in definitive
registered form without coupons, in authorized
denominations, the Global Debenture shall be canceled by the
Trustee. Such Subordinated Debentures in definitive
registered form issued in exchange for the Global Debenture
shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such
Securities to the Depository for delivery to the Persons in
whose names such Securities are so registered.
SECTION 2.5. Interest.
(a) Each Subordinated Debenture will bear interest at the rate
of 7.20% per annum (the "Coupon Rate") from its original
date of issuance or from the most recent Interest Payment
Date (as defined below) to which interest has been paid or
duly provided for until the principal thereof becomes due
and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at
the Coupon Rate, compounded quarterly, payable (subject to
the provisions of Article Four) quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date"), commencing on December
31, 1998, to the Person in whose name such Subordinated
Debenture or any Predecessor Security is registered, at the
close of business on the Regular Record Date for such
interest installment, which, in respect of any Subordinated
Debentures of which the Property Trustee is the Holder or a
Global Debenture, shall be the close of business on the
Business Day next preceding that Interest Payment Date;
provided, however, that interest paid at maturity shall be
paid to the Person to whom principal is paid.
Notwithstanding the foregoing sentence, if the Preferred
Securities are no longer in book-entry only form or if
pursuant to the Indenture the Subordinated Debentures are
not represented by a Global Debenture, the Regular Record
Date for such interest installment shall be 15 Business Days
before the relevant Interest Payment Date. Any interest on
any Subordinated Debenture which is payable but is not
punctually paid or duly provided for on any Interest Payment
Date shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date by virtue of having been
such Holder, and such defaulted interest and interest on
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such defaulted interest (to the extent lawful) at the Coupon
Rate may be paid by the Company, at its election, (i) to the
Persons in whose names the Subordinated Debentures (or their
respective Predecessor Securities) are registered at the
close of business on a Special Record Date to be fixed by
the Company for such payment, notice of which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment, or (ii) in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which the Subordinated Debentures may
be listed, and upon such notice as may be required by such
exchange, all as more fully provided in Section 307 of the
Indenture.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day
months. Except as provided in the following sentence, the
amount of interest payable for any period shorter than a
full quarterly period for which interest in computed will be
computed on the basis of the actual number of days elapsed
in such a 30-day month. In the event that any date on which
interest is payable on the Subordinated Debentures is not a
Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with
the same force and effect as if made on such date.
(c) If, at any time while the Property Trustee is the Holder of
any Subordinated Debentures, the Trust or the Property
Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than
withholding taxes) imposed by the United States or any other
taxing authority (including, without limitation, if an event
described in clause (i) or (iii) of the definition of Tax
Event has occurred and is continuing), then, in any case,
the Company will pay as additional interest ("Additional
Sums") on the Subordinated Debentures held by the Property
Trustee such additional amounts as shall be required so that
the net amounts received and retained by the Trust and the
Property Trustee after paying such taxes, duties,
assessments or other governmental charges will be equal to
the amounts the Trust and the Property Trustee would have
received had no such taxes, duties, assessments or other
government charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
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SECTION 3.1. Special Event Redemption.
If, prior to November 18, 2003, a Tax Event or an Investment Company
Event has occurred and is continuing then, notwithstanding Section
3.2, the Company shall have the right upon not less than 30 nor more
than 60 days' notice to the Holders of the Subordinated Debentures to
redeem the Subordinated Debentures in whole (but not in part) within
90 days following the occurrence of such Tax Event or Investment
Company Event at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon
(including Compounded Interest and Additional Sums, if any) to the
date of such redemption (the "Redemption Price"). The Redemption
Price shall be paid prior to 12:00 noon, New York time, on the date of
such redemption or such earlier time as the Company determines,
provided that the Company shall have deposited with the Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m. on the
date such Redemption Price is to be paid. Such redemption shall
otherwise be in accordance with the provisions of Article Eleven of
the Indenture.
SECTION 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Eleven of the Indenture, except as
otherwise may be specified in this Second Supplemental
Indenture, the Company shall have the right to redeem the
Subordinated Debentures, in whole or in part, from time to
time, on or after November 18, 2003 at the Redemption Price.
Any redemption pursuant to this paragraph will be made upon
not less than 30 nor more than 60 days' notice to the Holder
of the Subordinated Debentures. If the Subordinated
Debentures are only partially redeemed pursuant to this
Section 3.2, the particular Subordinated Debentures to be
redeemed will be selected on a pro rata basis by such method
as the Trustee shall deem fair and appropriate or, if at the
time of redemption the Subordinated Debentures are
registered as a Global Debenture, in accordance with the
Depository's customary procedures. The Redemption Price
shall be paid prior to 12:00 noon, New York time, on the
date of such redemption or at such earlier time as the
Company determines, provided that the Company shall have
deposited with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m. on the date such Redemption
Price is to be paid.
(b) The Company may not redeem fewer than all of the
Subordinated Debentures unless all accrued and unpaid
interest has been paid on all Subordinated Debentures for
all quarterly interest payment periods terminating on or
prior to the date of redemption. If a partial redemption of
the Subordinated Debentures would result in the delisting of
the Preferred Securities issued by the Trust from any
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national securities exchange or other organization on which
the Preferred Securities are then listed, the Company shall
not be permitted to effect such partial redemption and may
only redeem the Subordinated Debentures in whole.
SECTION 3.3. No Sinking Fund.
The Subordinated Debentures are not entitled to the benefit of any
sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of the
Subordinated Debentures, from time to time to defer payments of
interest by extending the interest payment period of such Subordinated
Debentures for up to 20 consecutive quarters, but not beyond the
Scheduled Maturity Date of the Subordinated Debentures (the "Extended
Interest Payment Period"). To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1,
will bear interest thereon at the Coupon Rate compounded quarterly for
each quarter of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period the
Company shall pay all interest accrued and unpaid on the Subordinated
Debentures, including any Additional Sums and Compounded Interest
("Deferred Interest") that shall be payable, to the Holders of the
Subordinated Debentures in whose names the Subordinated Debentures are
registered in the Security Register on the first Regular Record Date
after the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Company may
further extend such period, provided that such period together with
all such previous and further extensions thereof shall not exceed 20
consecutive quarters or extend beyond the Scheduled Maturity Date.
Upon the termination of any Extended Interest Payment Period and upon
the payment of all Deferred Interest then due, the Company may
commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during
an Extended Interest Payment Period, except at the end thereof.
SECTION 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the
Subordinated Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give
written notice to the Regular Trustees, the Property Trustee
and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (i)
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the next succeeding date on which Distributions on the Trust
Securities issued by the Trust are payable, or (ii) the date
the Trust is required to give notice of the record date or
the date such Distributions are payable to the New York
Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities
issued by the Trust, but in any event at least one Business
Day before such record date.
(b) If the Property Trustee is not the only Holder of the
Subordinated Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give the
Holders of the Subordinated Debentures and the Trustee
written notice of its selection of such Extended Interest
Payment Period 10 Business Days before the earlier of (i)
the next succeeding Interest Payment Date, or (ii) the date
the Company is required to give notice of the record or
payment date of such interest payment to the New York Stock
Exchange or other applicable self-regulatory organization
or to Holders of the Subordinated Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted
as one of the 20 quarters permitted in the maximum Extended
Interest Payment Period permitted under Section 4.1.
SECTION 4.3. RESTRICTIONS ON PAYMENTS DURING EXTENDED INTEREST
PAYMENT PERIOD
During any Extended Interest Payment Period, (a) the Company may not
declare or pay any dividends on, make any distribution with respect
to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock and (b) the Company may not make
any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that
rank pari passu with or junior to the Subordinated Debentures or make
any guarantee payments with respect to the foregoing; provided,
however, that, notwithstanding Section 1009(b) of the Indenture, the
foregoing restrictions do not apply to (i) repurchases, redemptions or
other acquisitions of shares of capital stock of the Company (A) in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, (B) in connection with a dividend
reinvestment or stockholder stock purchase plan or (C) in connection
with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to such
Extended Interest Payment Period, (ii) an exchange, redemption or
conversion of any class or series of the Company's capital stock (or
any capital stock of a subsidiary of the Company) for any class or
series of the Company's capital stock or of any class or series of the
Company s indebtedness for any class or series of the Company's
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xxxxxxx xxxxx, (xxx) the purchase of fractional interests in shares of
the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (iv) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other
property under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto, (v) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or
the stock issuable upon exercise of such warrants, options or other
rights is the same stock as that on which the dividend is being paid
or ranks pari passu with or junior to such stock, or (vi) payments by
the Company under the Preferred Securities Guarantee or under any
similar guarantee by the Company with respect to any securities of its
subsidiaries, provided the proceeds from the issuance of such
securities were used to purchase junior subordinated deferrable
interest debentures issued by such subsidiary.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the Subordinated
Debentures to the Property Trustee in connection with the sale of the
Trust Securities by the Trust, the Company shall:
(a) pay for all costs and expenses relating to the offering,
sale and issuance of the Subordinated Debentures, including
commissions to the underwriters payable pursuant to the
Underwriting Agreement and compensation of the Trustee under
the Indenture in accordance with the provisions of Section
607 of the Indenture; and
(b) pay for all costs and expenses of the Trust, including, but
not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and issuance
of the Trust Securities (including commissions to the
underwriters payable pursuant to the Underwriting Agreement
in connection therewith); the fees and expenses of the
Property Trustee (including, without limitation, those
incurred in connection with the enforcement by the Property
Trustee of the rights of the holders of the Preferred
Securities), the Delaware Trustee and the Regular Trustees;
the costs and expenses relating to the operation of the
Trust (including, without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and
other telecommunications expenses); and costs and expenses
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incurred in connection with the acquisition, financing and
disposition of Trust assets; and
(c) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes
of the Trust.
ARTICLE VI
SUBORDINATION
SECTION 6.1. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Subordinated
Debentures issued hereunder by such Holder's acceptance thereof
likewise covenants and agrees, that all Subordinated Debentures shall
be issued subject to the provisions of this Article Six; and each
Holder of a Subordinated Debenture, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by
such provisions. The payment by the Company of the principal of and
premium, if any, and interest on all Subordinated Debentures issued
hereunder shall, to the extent and in the manner hereinafter set
forth, be subordinated and junior in right of payment to the prior
payment in full of all Senior Indebtedness, whether outstanding at the
date of this Supplemental Indenture or hereafter incurred. No
provision of this Article Six shall prevent the occurrence of any
default or Event of Default.
SECTION 6.2. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment
due on any Senior Indebtedness, or in the event that the maturity of
any Senior Indebtedness has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with
respect to the principal (including redemption and sinking fund
payments) of or premium, if any, or interest on the Subordinated
Debentures. In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraph of this Section 6.2, such
payment shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of such Senior Indebtedness or their
respective representatives, or to the trustee or trustees under any
indenture pursuant to which any Senior Indebtedness may have been
issued, as their respective interests may appear, but only to the
extent that the holders of such Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee
within 90 days of such payment of the amounts then due and owing on
such Senior Indebtedness, and only the amounts specified in such
notice to the Trustee shall be paid to the holders of such Senior
Indebtedness.
13
SECTION 6.3. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due upon all Senior Indebtedness shall first
be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company
on account of the principal (and premium, if any) or interest on the
Subordinated Debentures; and upon any such dissolution or winding-up
or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, which the Holders of the
Subordinated Debenture or the Trustee would be entitled to receive
from the Company, except for the provisions of this Article Six, shall
be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Subordinated Debentures or by
the Trustee under the Indenture if received by them or it, directly to
the holders of any Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by
such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the
extent necessary to pay such Senior Indebtedness in full, in money or
money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before
any payment or distribution is made to the Holders of Subordinated
Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing,
shall be received by the Trustee before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held
in trust for the benefit of and shall be paid over or delivered to the
holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, as
calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its
terms, after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Indebtedness.
For purposes of this Article Six, the words "cash, property or
securities" shall not be deemed to include shares of stock of the
14
Company as reorganized or readjusted, or securities of the Company or
any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the
extent provided in this Article Six with respect to the Subordinated
Debentures to the payment of all Senior Indebtedness that may at the
time be outstanding, provided that (i) such Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of
such Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms
and conditions provided for in Article Eight of the Indenture shall
not be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section 6.3 if such other corporation shall,
as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article Eight of the Indenture.
Nothing in Section 6.2 or in this Section 6.3 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 607 of
the Indenture.
SECTION 6.4. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Subordinated Debentures shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the
Company, as the case may be, applicable to such Senior Indebtedness
until the principal of (and premium, if any) and interest on the
Subordinated Debentures shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which
the Holders of the Subordinated Debentures or the Trustee would be
entitled except for the provisions of this Article Six, and no payment
over pursuant to the provisions of this Article Six to or for the
benefit of the holders of such Senior Indebtedness by Holders of the
Subordinated Debentures or the Trustee shall, as between the Company,
its creditors other than holders of Senior Indebtedness and the
Holders of the Subordinated Debentures, be deemed to be a payment by
the Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article Six are and are
intended solely for the purposes of defining the relative rights of
the Holders of the Subordinated Debentures, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article Six or elsewhere in the Indenture or
in the Subordinated Debentures is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness and the Holders of the Subordinated Debentures, the
obligation of the Company, which is absolute and unconditional, to pay
15
to the Holders of the Subordinated Debentures the principal of (and
premium, if any) and interest on the Subordinated Debentures as and
when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the
Holders of the Subordinated Debentures and creditors of the Company,
other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any
Subordinated Debenture from exercising all remedies otherwise
permitted by applicable law upon default under the Indenture, subject
to the rights, if any, under this Article Six of the holders of such
Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any
payment or distribution of assets of the Company referred to in this
Article Six, the Trustee, subject to the provisions of Section 602 of
the Indenture, and the Holders of the Subordinated Debentures shall be
entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of the Subordinated
Debentures, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Six.
SECTION 6.5. Trustee to Effectuate Subordination.
Each Holder of Subordinated Debentures by such Holder's acceptance
thereof authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Six and appoints the Trustee
such Holder's attorney-in-fact for any and all such purposes.
SECTION 6.6. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of
the Subordinated Debentures pursuant to the provisions of this Article
Six. Notwithstanding the provisions of this Article Six or any other
provision of the Indenture and this Second Supplemental Indenture, the
Trustee shall not be charged with knowledge of the existence of any
facts that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Subordinated Debentures pursuant to the
provisions of this Article Six, unless and until a Responsible Officer
of the Trustee shall have received written notice thereof from the
Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Section 602 of the
Indenture, shall be entitled in all respects to assume that no such
16
facts exist; provided, however, that, if the Trustee shall not have
received the notice provided for in this Section 6.6 at least two
Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or
interest on any Subordinated Debenture), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected by
any notice to the contrary that may be received by it within two
Business Days prior to such date.
The Trustee, subject to the provisions of Section 602 of the
Indenture, shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a
holder of such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Six, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Six, and, if such evidence is
not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
SECTION 6.7. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Six in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Six, and no
implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of such Senior Indebtedness, and the Trustee shall not be
liable to any holder of such Senior Indebtedness if it shall
mistakenly pay over or deliver to the Holders of the Subordinated
Debentures, the Company or any other Person money or assets to which
any holder of such Senior Indebtedness shall be entitled by virtue of
this Article Six or otherwise.
17
SECTION 6.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be
charged with. Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the Company
may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Subordinated Debentures,
without incurring responsibility to the Holders of the Subordinated
Debentures and without impairing or releasing the subordination
provided in this Article Six or the obligations hereunder of the
Holders of the Subordinated Debentures to the holders of such Senior
Indebtedness, do any one or more the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Senior Indebtedness, or otherwise amend or
supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any other
Person.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Covenant to List on Exchange.
If Subordinated Debentures are to be distributed to the holders of the
Preferred Securities upon a Dissolution Event, the Company will use
its best efforts to list such Subordinated Debentures on the New York
Stock Exchange or on such other exchange as the Preferred Securities
are then listed.
ARTICLE VIII
FORM OF SUBORDINATED DEBENTURE
SECTION 8.1. Form of Subordinated Debenture.
The Subordinated Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the
following forms:
(FORM OF FACE OF DEBENTURE)
18
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT: This
Subordinated Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Subordinated Debenture
is exchangeable for Subordinated Debentures registered in the name of
a person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this
Subordinated Debenture (other than a transfer of this Subordinated
Debenture as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee
of the Depository) may be registered except in limited circumstances.
Unless this Subordinated Debenture is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx) to the issuer or its agent for registration of
transfer, exchange or payment, and any Subordinated Debenture issued
is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
No._______________
$_________________
CUSIP No. 668074 AA 5
7.20% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE DUE 2038
NorthWestern Corporation, a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay
to ______________________, or registered assigns, the principal sum of
_______ Dollars on December 31, 2038, and to pay interest on said
principal sum from November 18, 1998, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June 30,
September 30 and December 31 of each year commencing December 31,
1998, at the rate of 7.20% per annum until the principal hereof shall
have become due and payable, and on any overdue principal and premium,
if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on
this Subordinated Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in
19
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force
and effect as if made on such date. The interest installment so
payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Subordinated Debenture (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close
of business on the Regular Record Date for such interest installment,
which, if this Subordinated Debenture is a Global Debenture, shall be
the close of business on the Business Day next preceding such Interest
Payment Date or, if this Subordinated Debenture is not a Global
Debenture, shall be 15 Business Days before the relevant Interest
Payment Date; provided that interest paid at maturity shall be paid to
the Person to whom principal is paid. Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such Regular Record Date and may
be paid to the Person in whose name this Subordinated Debenture (or
one or more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to
the registered Holders of the Subordinated Debentures not less than 10
days prior to such special record date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Subordinated Debentures may be
listed, and upon such notice as may be required by such exchange, all
as more fully provided in the Indenture. The principal of (and
premium, if any) and interest on this Subordinated Debenture shall be
payable at the office or agency of the Trustee maintained for that
purpose in any coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made
at the option of the Company by check mailed to the registered Holder
at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this
Subordinated Debenture is the Property Trustee, the payment of the
principal of (and premium, if any) and interest on this Subordinated
Debenture will be made at such place and to such account as may be
designated by the Property Trustee.
The indebtedness evidenced by this Subordinated Debenture is, to the
extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness, and
this Subordinated Debenture is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Subordinated
Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior
20
Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
Unless the Certificate of Authentication hereon has been executed by
the Trustee referred to on the reverse side hereof, this Subordinated
Debenture shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose. The provisions of this
Subordinated Debenture are continued on the reverse side hereof, and
such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
21
IN WITNESS WHEREOF, the Company has caused this instrument
to be executed.
Dated: _______________
NORTHWESTERN CORPORATION
By: ___________________________________
Attest:
By: ____________________________
Secretary
22
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
__________________________________
The Chase Manhattan Bank, as
Trustee
By: ______________________________
Authorized Officer
23
(FORM OF REVERSE OF DEBENTURE)
This Subordinated Debenture is one of a duly authorized series of
Securities of the Company (herein sometimes referred to as the
"Subordinated Debentures"), all issued under and pursuant to an
Indenture dated as of August 1, 1995, duly executed and delivered
between the Company and The Chase Manhattan Bank (as successor to The
Chase Manhattan Bank, N.A.), as Trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture thereto dated as of
August 1, 1995 and as further supplemented by the Second Supplemental
Indenture thereto dated as of November 15, 1998, between the Company
and the Trustee (such Indenture as so supplemented, the "Indenture"),
to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Subordinated Debentures. By the terms
of the Indenture, the Securities are issuable in series that may vary
as to amount, date of maturity, rate of interest and in other respects
as provided in the Indenture. This series of Securities is limited in
aggregate principal amount as specified in said Second Supplemental
Indenture.
The Company shall have the right to redeem this Subordinated Debenture
at the option of the Company, without premium or penalty, (i) in whole
or in part at any time on or after November 18, 2003 and (ii) in whole
(but not in part) at any time before November 18, 2003 in certain
circumstances upon the occurrence of a Tax Event or an Investment
Company Event, in each case at a redemption price equal to 100% of the
principal amount plus any accrued but unpaid interest hereon to the
date of such redemption (the "Redemption Price"). Any redemption
pursuant to this paragraph will be made upon not less than 30 nor more
than 60 days' notice, at the Redemption Price. The Company may not
redeem fewer than all of the Subordinated Debentures unless all
accrued and unpaid interest has been paid on all Subordinated
Debentures for all quarterly interest payment periods terminating on
or prior to the date of redemption. If a partial redemption of the
Subordinated Debentures would result in the delisting of the Preferred
Securities issued by the Trust from any national securities exchange
or other organization on which the Preferred Securities are then
listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Subordinated Debentures in whole.
If the Subordinated Debentures are only partially redeemed by the
Company, the particular Subordinated Debentures to be redeemed will be
selected on a pro rata basis by such method as the Trustee shall deem
fair and appropriate or, if the Subordinated Debentures are registered
as a Global Debenture, in accordance with the Depository's customary
procedures.
In the event of redemption of this Subordinated Debenture in part
only, a new Subordinated Debenture or Debentures for the unredeemed
24
portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Subordinated
Debentures may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority
in aggregate principal amount of the Subordinated Debentures and all
other series of Securities affected at the time Outstanding, as
defined in the Indenture, to execute supplemental indentures for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Holders of the Subordinated Debentures; provided, however, that no
such supplemental indenture may, without the consent of the Holder of
each outstanding Subordinated Debenture, among other things, (i)
change the stated maturity of the principal of, or any installment of
interest on, any Subordinated Debenture, (ii) reduce the principal
amount of, or the rate of interest on or any Additional Sums payable
in respect of, or any premium payable upon the redemption of, the
Subordinated Debentures, or change the redemption provisions of the
Subordinated Debentures, (iii) impair the right to institute suit for
the enforcement of any such payment on or after the stated maturity of
or any redemption date for the Subordinated Debentures or (iv) reduce
the above-stated percentage of principal amount of Subordinated
Debentures, the Holders of which are required to modify or amend the
Indenture, to consent to any waiver thereunder or to approve any
supplemental indenture. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of
the Subordinated Debentures at the time outstanding affected thereby,
on behalf of all of the Holders of the Subordinated Debentures, to
waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture
with respect to the Subordinated Debentures, and its consequences,
except a default in the payment of the principal of or interest on any
of the Subordinated Debentures (unless cured as provided in the
Indenture) or in respect of a covenant or provision that cannot be
modified or amended without the consent of the Holders of each
Subordinated Debenture then outstanding. Any such consent or waiver
by the registered Holder of this Subordinated Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this
Subordinated Debenture and of any Subordinated Debenture issued in
exchange herefor or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of
such consent or waiver is made upon this Subordinated Debenture.
25
No reference herein to the Indenture and no provision of this
Subordinated Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay
the principal of and premium, if any, and interest on this
Subordinated Debenture at the time and place and at the rate and in
the money herein prescribed.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this
Subordinated Debenture from time to time to extend the interest
payment period hereof to up to 20 consecutive quarters, but not beyond
the Scheduled Maturity Date of this Subordinated Debenture (an
"Extended Interest Payment Period"), at the end of which period the
Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified herein to the extent that
payment of such interest is enforceable under applicable law).
Before the termination of any such Extended Interest Payment Period,
the Company may further extend such Extended Interest Payment Period,
provided that such Extended Interest Payment Period together with all
such previous and further extensions thereof shall not exceed 20
consecutive quarters or extend beyond the Scheduled Maturity Date. At
the termination of any such Extended Interest Payment Period and upon
the payment of all accrued and unpaid interest and any additional
amounts then due, the Company may commence a new Extended Interest
Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Subordinated Debenture is transferable by the
registered Holder hereof on the Security Register of the Company, upon
surrender of this Subordinated Debenture for registration of transfer
at the office or agency of the Company in the City and State of New
York accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Subordinated Debentures of authorized
denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Subordinated Debenture, the Company, the Trustee, any paying agent and
any Security Registrar may deem and treat the registered holder hereof
as the absolute owner hereof (whether or not this Subordinated
Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal
hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent
26
nor any Security Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Subordinated Debenture, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of
the Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of any
predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
The Subordinated Debentures of this series are issuable only in
registered form without coupons in denominations of $25 and any
integral multiple thereof. As provided in the Indenture and subject
to certain limitations herein and therein set forth, Subordinated
Debentures of this series so issued are exchangeable for a like
aggregate principal amount of Subordinated Debentures of this series
of a different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Subordinated Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE IX
ORIGINAL ISSUE OF SUBORDINATED DEBENTURES
SECTION 9.1. Original Issue of Subordinated Debentures.
Subordinated Debentures in the aggregate principal amount of
$56,701,050 may, upon execution of this Second Supplemental Indenture,
be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
deliver said Subordinated Debentures to or upon receipt of a Company
Order, without any further action by the Company.
ARTICLE X
RIGHTS OF HOLDERS OF PREFERRED SECURITIES
SECTION 10.1. Preferred Security Holders' Rights
Notwithstanding Section 507 of the Indenture, if the Property Trustee
fails to enforce its rights under the Declaration or the Subordinated
Debentures, any holder of Preferred Securities may institute a legal
proceeding against the Company to enforce the Property Trustee's
rights under the Declaration or the Subordinated Debentures without
first instituting any legal proceeding against the Property Trustee or
any other Person or entity.
27
SECTION 10.2. Direct Action.
Notwithstanding any other provision of the Indenture, for as long as
any Preferred Securities remain outstanding, to the fullest extent
permitted by law, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the
Company to pay interest or principal on the Subordinated Debentures on
the date such interest or principal is due and payable, any holder of
Preferred Securities shall have the right to institute a proceeding
directly against the Company for enforcement of payment to such holder
of the principal of or interest (including any Additional Sums) on
Subordinated Debentures having an aggregate principal amount equal to
the aggregate liquidation amount of such holder's Preferred Securities
(a "Direct Action"). The Company may not amend this Subordinated
Indenture to remove the right to bring a Direct Action without the
prior written consent of the holders of all the Preferred Securities
then outstanding.
SECTION 10.3. Payments Pursuant to Direct Actions.
The Company shall have the right to set-off against its obligations to
the Trust, as Holder of the Subordinated Debentures, any payment made
to a holder of Preferred Securities in connection with a Direct
Action.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Ratification of Indenture.
The Indenture, as heretofore supplemented and as further supplemented
by this Second Supplemental Indenture, is in all respects ratified and
confirmed, and this Second Supplemental Indenture shall be deemed part
of the Indenture in the manner and to the extent herein and therein
provided.
SECTION 11.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or
sufficiency of this Second Supplemental Indenture.
SECTION 11.3. Governing Law.
This Second Supplemental Indenture and each Subordinated Debenture
shall be deemed to be a contract made under the internal laws of the
State of New York and for all purposes shall be construed in
accordance with the laws of said State.
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SECTION 11.4. Separability.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Subordinated Debentures shall for any
reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any
other provisions of this Second Supplemental Indenture or of the
Subordinated Debentures, but this Second Supplemental Indenture and
the Subordinated Debentures shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or
therein.
SECTION 11.5. Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Second Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, on the
date or dates indicated in the acknowledgments and as of the day and
year first above written.
NORTHWESTERN CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
-
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief
Operation Officer
Attest:
Xxxxx Xxxxxxxx-Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx-Xxxxxxx
Title: Assistant Corporate Secretary
THE CHASE MANHATTAN BANK
By: /s/ X.X. Xxxxxxxx
---------------------------------
Name: X.X. Xxxxxxxx
Title: Second Vice President
Attest:
Sheik Wiltshire
------------------------------------
Name: Sheik Wiltshire
Title: Second Vice President
00
XXXXX XX XXXXX XXXXXX )
) SS
COUNTY OF MINNEHAHA )
On the day of November 18, 1998 before me personally
Xxxxxxx X. Xxxxxxx and came to be known, who, being by me duly sworn,
did depose and say that he is the President and Chief Operating Officer
of NorthWestern Corporation, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal
of said corporation; that the seal affixed to the said instrument is
such corporation seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he signed his name thereto by
like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my seal of office this 18 day of November 1998.
/s/ Xxxxx X. Xxxxxx
-----------------------------
(Notarial Seal)
STATE OF NEW YORK )
) SS
COUNTY OF KINGS )
On the day of November 18, 1998, before me personally X. X.
Xxxxxxxx came to be known, who, being by me duly sworn, did depose and
say that he is the a Second Vice President of The Chase Manhattan
Bank, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such
corporation seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by
like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my seal of office this 18th day of November, 1998.
/s/ Xxxxx Xxxxx
-------------------------------
(Notarial Seal)
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