Exhibit 4(h)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of November 1, 1996, between The
Montana Power Company, a Montana corporation ("Montana Power"),
and Montana Power Capital I, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue and sell its
preferred securities (the "Preferred Securities") and to apply
the proceeds of such sale to the purchase from Montana Power of
Montana Power's Junior Subordinated Debentures;
NOW, THEREFORE, in consideration of the acceptance of
the Preferred Securities by each holder thereof, which acceptance
Montana Power acknowledges shall benefit Montana Power and which
acceptance Montana Power acknowledges will be made in reliance
upon the execution and delivery of this Agreement, Montana Power,
and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Montana Power. Subject to
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the terms and conditions hereof, Montana Power hereby irrevocably
and unconditionally assumes the full payment, when and as due, of
any and all Obligations (as hereinafter defined) to each person
or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries"). As used herein, "Obligations"
means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any
Trust Securities the amounts due such holders pursuant to the
terms of the Trust Securities. This Agreement is intended to be
for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
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terminate and be of no further force and effect upon the date on
which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any Beneficiary
must restore payment of any sum paid on account of any
Obligation, under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Montana Power hereby
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waives (i) notice of acceptance of this Agreement and of any
Obligation to which it may apply, and (ii) presentment, demand
for payment, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations,
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covenants, agreements and duties of Montana Power under this
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 extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) 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 Trust or any of
the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation
to give notice to, or obtain the consent of, Montana Power with
respect to the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
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this Agreement directly against Montana Power, and Montana Power
waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding
against Montana Power.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations,
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covenants, agreements and duties contained in this Agreement
shall bind the successors, assigns, receivers, trustees and
representatives of Montana Power.
Section 2.02. Amendment. So long as there shall
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remain any Beneficiary or any Preferred Securities shall be
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
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communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
Montana Power Capital I
c/o The Montana Power Company
00 Xxxx Xxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Administrative Trustees
The Montana Power Company
00 Xxxx Xxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above written.
THE MONTANA POWER COMPANY
By: /s/ X.X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: Vice President and Chief
Financial and Information
Officer
MONTANA POWER CAPITAL I
By: /s/ X. X. Xxxxxxxx
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X. X. Xxxxxxxx, not in her
individual capacity, but solely
as Administrative Trustee
