EXHIBIT 4(b)(14)
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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 Xxxxx X. Xxxxx, Xxxxxxx
X. Xxxxxxx, 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
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, Xxxxx X. Xxxxx and Xxxxxxx X.
Xxxxxxx, 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 Xxxxx X. Xxxxx,
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
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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
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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/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief
Operating Officer
Wilmington Trust Company,
not in its individual capacity
but solely as Trustee
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Administrative Account Manager
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, not in his individual
capacity but solely as Trustee
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, not in his
individual capacity but solely as Trustee
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