WSP&R
DRAFT
6/17/95
TRUST PREFERRED CAPITAL SECURITIES
UNDERWRITING AGREEMENT
NWPS CAPITAL FINANCING I
c/o Northwestern Public Service Company
33 Third Street SE
Huron, South Dakota 57350-1318
NORTHWESTERN PUBLIC SERVICE COMPANY
33 Third Street SE
Huron, South Dakota 57350-1318
______ __, 1995
Ladies and Gentlemen:
On the basis of the representations and warranties, and subject to
the terms and conditions, set forth in this agreement ("this Agreement" or the
"Underwriting Agreement"), we, the Representative of the Underwriters (as
defined below), understand that NWPS Capital Financing (the "Trust"), a
statutory business trust organized under the Business Trust Act (the "Delaware
Act") of the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12
Del. C. Section 3801 ET SEQ.) and Northwestern Public Service Company, a
Delaware corporation, as holder of the Common Securities (as defined herein) of
the Trust and as guarantor (the "Company") proposes that the Trust issue and
sell [ ] aggregate number (the "Firm Securities") of its Preferred Securities
of a series designated
[ ]% Trust Preferred Capital Securities (liquidation preference $25 per
security) and not more than an additional [ ] Preferred Securities (the
"Additional Securities") if and to the extent that we, as Representative, shall
be determined to exercise, on behalf of the Underwriters the right to purchase
such Additional Securities granted to the Underwriter in Article II hereto. The
Firm Securities and the Additional Securities are hereinafter collectively
referred to as the "Preferred Securities." The Preferred Securities will be
guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Preferred Securities Guarantee")
pursuant to the Preferred Securities Guarantee Agreement (the "Preferred
Securities Guarantee Agreement"), dated as of _________ __, 1995,
__________________ between the Company and Wilmington Trust Company, as Trustee
(the "Guarantee Trustee"). The Preferred Securities and the related Preferred
Securities Guarantee are referred to herein as the Securities.
The entire proceeds from the sale of the Securities will be combined
with the entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities") guaranteed by the Company, to the extent
set forth in the Prospectus, with respect to distributions and payments upon
liquidation, and redemption (the "Common Securities Guarantee" and together with
the Preferred Securities Guarantee, the "Guarantees") pursuant to the Common
Securities Guarantee Agreement (the "Common Securities Guarantee Agreement" and,
together with the Preferred Securities Guarantee Agreement, the "Guarantee
Agreements"), dated as of _______ __, 1995, between the Company and the
Guarantee Trustee, as Trustee, and will be used by the Trust to purchase
subordinated debt securities issued by the Company ("Subordinated Debt
Securities" and, together with the Guarantee Agreements and the Guarantees, the
"Company Securities"). The Preferred Securities and the Common Securities will
be issued pursuant to the amended and restated declaration of trust of the
Trust, dated as of _______ __, 1995 (the "Declaration"), among the Company, as
Sponsor, the trustees named therein (the "Trustees") and the holders from time
to time of undivided beneficial interests in the assets of the Trust. The
Subordinated Debt Securities will be issued pursuant to an indenture, dated as
of _____ __, 1995 (the "Base Indenture"), between the Company and ________ __,
as trustee (the "Debt Trustee"), and a supplement to the Base Indenture, dated
as of _______ __, 1995 (the "Supplemental Indenture," and together with the Base
Indenture and any other amendments or supplements thereto, the "Indenture"),
between the Company and the Debt Trustee.
The term "Underwriters" as used herein, shall be deemed to mean the
several persons, firms or corporations named in Schedule I hereto, and the term
"Representative," as used herein, shall be deemed to mean the representative or
representatives of such Underwriters by whom or on whose behalf this
Underwriting Agreement is signed. If there shall be one person, firm or
corporation named in Schedule I, the term "Underwriters" and the term
"Representative," as used herein, shall mean that person, firm or corporation.
All obligations of the Underwriters are several and not joint. The use of the
term "Underwriter" herein shall not be deemed to establish or admit that a
purchaser of the Securities is an "underwriter" of the Securities as such term
is defined in and used under the Securities Act of 1933, as amended (the
"Securities Act").
1. REPRESENTATIONS AND WARRANTIES. Each of the Trust and the
Company jointly and severally represents and warrants to and agrees with each of
the Underwriters that:
(a) The Trust and the Company have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Registration Statement No. 33-_____), including a prospectus, relating to the
Securities, and has filed with, or transmitted for filing to, or shall
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promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Securities pursuant to Rule 424 under the Securities Act. The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement (exclusive of any
supplement to the prospectus relating solely to securities other than the
Securities). The term "Basic Prospectus" means the prospectus included in the
Registration Statement, as amended and supplemented to the date of this
Agreement. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Securities, together with the
Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus"
and "preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and, to
the Trust's and the Company's knowledge, after due inquiry, no proceedings for
such purpose are pending before or threatened by the Commission.
(c) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder or pursuant to
said rules and regulations will be deemed to comply therewith; (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder or pursuant to said rules and regulations will be deemed
to comply therewith; and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section 1(c) do
not apply (a) to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished to the
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Trust or the Company in writing by such Underwriter expressly for use therein or
(b) to that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-l) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act")..
(d) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus, to issue the Company Securities, to enter into and
perform its obligations under the Underwriting Agreement, the Declaration, the
Indenture and the Company Securities and to purchase, own, and hold the Common
Securities issued by the Trust and to consummate the transactions herein and
therein contemplated. The Company is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(f) The Trust has been duly created and is validly existing as a
business trust in good standing under the Delaware Act, has the power and
authority to own its property and to conduct its business as described in the
Prospectus, to issue and sell the Preferred Securities and the Common
Securities, and to enter into and perform its obligations under this Agreement,
the Preferred Securities, the Common Securities and the Declaration and to
consummate the transactions herein and therein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to do so qualified or be in good standing would not have a material
adverse effect on the Trust; the Trust is a special purpose trust as described
in the Prospectus and has conducted and will conduct no business other than the
transactions contemplated by the Underwriting Agreement and described in the
Prospectus; the Trust is not a party to or otherwise bound by any agreement
other than those described in the Prospectus, and is not a party to any action,
suit or
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proceeding of any nature; the Trust is not and will not be classified as an
association taxable as a corporation for United States federal income tax
purposes; and the Trust is and will be treated as a consolidated subsidiary of
the Company.
(g) The Common Securities have been duly authorized and, when
issued and delivered by the Trust to the Company against payment therefor as
described in the Registration Statement and Prospectus, will be validly issued
and (subject to the terms of the Declaration) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; the issuance of the
Common Securities is not subject to preemptive or other similar rights; at the
Closing Time, all of the issued and outstanding Common Securities of the Trust
will be, directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and the Common Securities
will conform to the descriptions thereof contained in the Prospectus.
(h) This Agreement has been duly authorized, executed and
delivered by each of the Trust and the Company.
(i) The Declaration has been duly qualified under the Trust
Indenture Act, has been duly authorized by the Company and, at the Closing Time,
will have been duly executed and delivered by the Company and the Trustees, and
assuming due authorization, execution and delivery of the Declaration by the
Property Trustee (as defined in the Declaration), the Declaration will, on the
Closing Date, be a valid and binding obligation of the Company and the Trustees,
enforceable against the Company and the Trustees in accordance with its terms,
except to the extent that enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and
general principles of equity (whether as considered in a proceeding at law or in
equity) and will conform to the descriptions thereof in the Prospectus.
(j) The Preferred Securities Guarantee Agreement has been duly
qualified under the Trust Indenture Act, and each of the Guarantee Agreements
has been duly authorized by the Company and, when validly executed and delivered
by the Company, will constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms; and the Guarantees
and the Guarantee Agreement will conform to the descriptions thereof contained
in the Prospectus.
(k) The Preferred Securities have been duly authorized and, when
issued and delivered against payment therefor in accordance with the provisions
of this Agreement and the Declaration, will be validly issued and (subject to
the terms of the Declaration) fully paid and non-assessable undivided beneficial
interests in the Trust, and be entitled to the benefits of the Declaration; the
issuance of the Preferred Securities is not subject to preemptive or other
similar rights;
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holders of Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit;
the Preferred Securities will conform to the description thereof contained in
the Prospectus.
(l) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized by the Company and, when validly executed and
delivered by the Company, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' rights generally or by general
principles of equity (whether considered in a proceeding at law or in equity);
the Indenture will conform to the description thereof contained in the
Prospectus.
(m) The Subordinated Debt Securities have been duly authorized and,
on the Closing Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered against
payment therefor as described in the Prospectus, will be entitled to the
benefits, of the Indenture, will rank PARI PASSU without any preference
among themselves and subordinated to all Senior Indebtedness (as defined in the
Indenture) and will constitute validly and binding obligations of the Company,
enforceable in accordance with their terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency or other similar
laws affecting creditors' rights generally or by general or by general
principles of equity (whether considered in a proceeding at law or in equity).
(n) The Company's obligations under the Guarantees are subordinate
and junior in right of payment to all liabilities of the Company and are pari
passu with the most senior preferred stock issued by the Company.
(o) ___________ and ___________, Trustees (the "Regular Trustees")
of the Trust, are employees of the Company and have been duly authorized by the
Company to execute and deliver the Declaration; the Declaration has been duly
executed and delivered by the Regular Trustees and is a valid and binding
obligation of each Regular Trustee, enforceable against such Regular Trustee in
accordance with its terms.
(p) Neither the Trust nor the Company is an "investment company" or
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(q) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws; the Trust is not in violation of the Declaration or
its Certificate of Trust filed with the State of Delaware on _______ __, 1995
(the "Certificate
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of Trust"); none of the Company, any of its subsidiaries or the Trust is in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company, any of its
subsidiaries or the Trust is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company, any of its
subsidiaries or the Trust is subject, except for such defaults that would not
have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Trust or of the Company
and its subsidiaries, taken as a whole; and the execution, delivery and
performance of this Agreement, the Declaration, the Preferred Securities, the
Common Securities, the Indenture, the Subordinated Debt Securities, the
Guarantee Agreements and the Guarantees and the consummation of the transactions
contemplated herein and therein and compliance by the Trust and the Company with
their respective obligations hereunder and thereunder have been duly authorized
by all necessary action (corporate or otherwise) on the part of the Trust and
the Company and do not and will not result in any violation of the charter or
by-laws of the Company or any subsidiary, or the Declaration or Certificate of
Trust and do not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Trust, the Company or any subsidiary under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to which
the Trust, the Company or any subsidiary is a party or by which it may be bound
or to which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Trust or the Company and its
subsidiaries, taken as a whole as one enterprise) or (B) any existing applicable
law, rule, regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or any regulatory body or
administrative agency or other governmental body having jurisdiction over the
Trust, the Company, or any subsidiary or any of their respective properties.
(r) There are no legal or governmental proceedings pending or
threatened to which the Company, any of its subsidiaries or the Trust is a party
or to which any of the properties of the Company, any of its subsidiaries or the
Trust is subject that are required to be described in the Registration Statement
or the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
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(s) The Federal Energy Regulatory Commission (the "FERC") has
issued an appropriate order or orders with respect to the issuance and sale of
the Common Securities, the Preferred Securities and the Company Securities in
accordance with, and as contemplated by, the Underwriting Agreement; such order
or orders are in full force and effect; the issuance and sale of the Common
Securities, the Preferred Securities and the Company Securities are in
conformity with the terms of such order or orders; and no other authorization,
approval or consent of any other governmental body or agency is legally required
for the issuance and sale of the Company Securities, the Preferred Securities
and the Company Securities as contemplated by the Underwriting Agreement, except
such as have been obtained under the Securities Act and the Trust Indenture Act
and such as may be required under the state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters.
(t) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries (taken as a whole) or the Trust from that set forth
in the Prospectus.
(u) On the basis of the present knowledge of the senior management
of the Company as to the business and affairs of Synergy Group Incorporated, a
Delaware corporation ("Synergy"), and its subsidiaries, the Company has no
reason to believe that the representations contained in subsections (r) and (t)
above would be incorrect in any material respect on the date hereof as a result
of the consummation of the acquisition of such business on the terms described
in the Prospectus (the "Acquisition").
(v) The unaudited pro forma consolidated financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus have been prepared in good faith by the Company; management's
assumptions provide a reasonable basis for presenting the significant effects
directly attributable to the Acquisition described in the notes to the unaudited
pro forma condensed consolidated financial statements, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro forma
column reflects the proper application of those adjustments to the historical
financial statement amounts contained in such unaudited pro forma consolidated
statements.
(w) Each of the conditions to the consummation of the Acquisition
contained in the Purchase and Sale Agreement dated as of May 17, 1995, by and
among Synergy and the other parties thereto (the "Acquisition Agreement"), has
been satisfied or, to the best knowledge of the Company, can be satisfied in the
ordinary course on or prior to September 30, 1995.
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2. PUBLIC OFFERING. The Trust and the Company are advised by
the Representative that the Underwriters propose to make a public offering of
their respective portions of the Preferred Securities as soon after this
Agreement has been entered into as in the judgment of the Representative is
advisable. The terms of the public offering of the Preferred Securities are set
forth in the Prospectus.
3. PURCHASE AND DELIVERY. Subject to the terms and conditions
set forth or incorporated by reference herein, the Trust hereby agrees to sell,
and the Underwriters agree to purchase, severally and not jointly, the
respective number of Firm Securities set forth below opposite their names in
Schedule hereto at a purchase price of $[ ] per Preferred Security.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Trust agrees to sell to
the Underwriters the Additional Securities, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to _______ Additional
Securities at the purchase price.
The Company agrees to issue the Company Securities concurrently with
the issue and sale of the Preferred Securities as contemplated herein. The
Company hereby guarantees the timely performance by the Trust of its obligations
under this Section 3. The Trust agrees to purchase the Subordinated Debt
Securities with the proceeds of, and concurrently with, the issue and sale of
the Preferred Securities.
As compensation to the Underwriters for their commitments
hereunder, and because the proceeds of the sale of the Preferred Securities will
be loaned by the Trust to the Company, the Company hereby agrees to pay on the
Closing Date to the Representative, for the accounts of the several
Underwriters, an amount equal to (i) in the case of such number of Preferred
Securities as are reserved by the Underwriters for sale to institutional
investors, $ ____ per Preferred Security and (ii) in the case of such number of
Preferred Securities as are not so reserved, $ _____ per Preferred Security.
The Underwriters shall inform the Company in writing, not later than the
business day prior to the Closing Date, of the number of Preferred Securities
reserved for sale to such institutional investors.
Payment for the Firm Securities shall be made by certified or
official bank check or checks payable to the order of the Trust in New York
Clearing House funds at the office of ______, New York, New York, at 10:00 A.M.
local time, on _____, 199_, or at such other time on the same or such other
date, not later than _______, 199_, as shall be designated in writing by the
Representative. The time and date of such payment are hereinafter referred to
as the Closing Date.
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Payment for any Additional Securities shall be made by certified or
official bank check or checks payable to the order of the Trust in New York
Clearing House Funds at the office of __________, New York, New York, at 10:00
A.M., local time, on such date (which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor later than ten business
days after the giving of the notice hereinafter referred to) as sahll be
designated in a written notice from the Representative to the Trust of the
Representative's determination, on behalf of the Underwriters, to purchase a
number, specified in said notice, of Additional Securities, or on such other
date, in any event not later than _______, 199_, as shall be designated in
writing by the Representative. The timer and date of such payment are
hereinafter referred to as the Option Closing Date. The notice of the
determination to exercise the option to purchase Additional Securities and of
the Option Closing Date may be given at any time within 30 days after the date
of this Agreement.
Certificates for the Firm Securities and Additional Securities shall
be in definitive form and registered in such names and in such denominations as
the Underwriters shall request not later than two full business days prior to
the closing Date or the Option Closing Date, as the case may be. The
certificates evidencing the Firm Securities and the Additional Securities shall
be delivered to the Representative on the Closing Date or the Option Closing
Date, as the case may be, for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer of
the Securities duly paid, against payment of the purchase price therefor.
4. CONDITIONS TO CLOSING. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading in the
rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and
its subsidiaries, taken as a whole, or the Trust, from that set forth in
the Prospectus, that, in the judgment of the Representative, is material
and adverse and that makes it, in the judgment of the Representative,
impracticable to market the Preferred Securities on the terms and in the
manner contemplated in the Prospectus; and
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(iii) the Company shall have obtained an appropriate order or
orders of the FERC authorizing the issuance, sale and delivery of the
Common Securities, the Preferred Securities and the Company Securities as
contemplated by the Underwriting Agreement, which order or orders at the
Closing Date shall be in full force and effect and shall not be contested
or the subject of review or appeal.
(b)(i) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company to the effect set forth in clause (a)(i), (ii) and (iii) above and to
the effect that the representations and warranties of the Company contained in
the Underwriting Agreement are true and correct as of the Closing Date and that
the Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before the Closing
Date. The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(ii) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an authorized representative
of the Trust to the effect set forth in clause (a)(i) and (iii) above and to the
effect that the representations and warranties of the Trust contained in the
Underwriting Agreement are true and correct as of the Closing Date and that the
Trust has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before the Closing
Date. The representative signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) The Representative shall have received on the Closing Date an
opinion dated the Closing Date of Schiff Hardin & Waite, special counsel to the
Company and the Trust, to the effect that
(i) the Company has been duly incorporated and, based upon
certificates or letters from state or other appropriate authorities, is
validly existing as a corporation in good standing under the laws of the
State of Delaware and is duly qualified and in good standing as a foreign
corporation in the States of Iowa, Nebraska, North Dakota and South
Dakota, with corporate powers and statutory authority to carry on the
business which it now carries on as stated in the Prospectus and to own
and operate the properties used by it in such business;
(ii) each subsidiary of the Company has been duly incorporated
and based upon certificates or letters from state or other appropriate
authorities, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation with corporate powers
and
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statutory authority to carry on the business which it now carries on as
stated in the Prospectus and to own and operate the properties used by it
in such business and is duly qualified and in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Trust and the Company;
(iv) the FERC has issued an appropriate order or orders with
respect to the issuance and sale of the Common Securities, the Preferred
Securities and the Company Securities, in accordance with, or as
contemplated by, the Underwriting Agreement; such order or orders are in
full force and effect; the issuance and sale of the Common Securities, the
Preferred Securities and the Company Securities are in conformity with the
terms of such order or orders; and no other authorization, approval or
consent of any other governmental body or agency is legally required for
the issuance and sale of the Company Securities, the Preferred Securities
and the Company Securities as contemplated by the Underwriting Agreement,
except such as have been obtained under the Securities Act and the Trust
Indenture Act and such as may be required under the state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(v) the statements (a) in the Prospectus under the captions "Risk
Factors," "NWPS Capital Financing I," "Description of the Preferred
Securities," "Description of the Subordinated Debt Securities," "Effect of
Obligations Under the Subordinated Debt Securities and the Guarantee,"
"United States Federal Income Taxation," "Underwriting, "Pending
Acquisition of Synergy Group Incorporated," "The NWPS Trusts,"
"Description of the Subordinated Debt Securities," "Description of the
Guarantees," and "Plan of Distribution," (b) in the Registration Statement
under Item 15, (c) in "Item 3 - Legal Proceedings" of the Company's most
recent annual report on Form 10-K incorporated by reference in the
Prospectus and (d) in "Item 1 - Legal Proceedings" of Part II of the
Company's quarterly reports on Form 10-Q filed since such annual report
and reviewed by such counsel, in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
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(vi) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company or
any of its subsidiaries, or the Trust, is a party or to which any of the
properties of the Company or any of its subsidiaries, or the Trust, is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required;
(vii) neither the Trust nor the Company is an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act.
(viii) the Registration Statement has become and is effective
under the Securities Act, and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for a stop order with respect thereto are
pending or threatened under Section 8(d) of the Securities Act; and
(ix) such counsel (a) is of the opinion that (except for
financial statements and schedules included therein as to which such
counsel need not express any opinion and except for documents filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus that such counsel did not review as to which such counsel need
not express any opinion) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied when
so filed as to form in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (b)
believes that (except for financial statements and schedules as to which
such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-l heretofore referred
to) each part of the Registration Statement, when such part became
effective did not, and, as of the date such opinion is delivered, does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (c) is of the opinion that the
Registration Statement and Prospectus (except for financial statements and
schedules included therein as to which such counsel need not express any
opinion), comply as to form in all material respects with the Securities
Act and the applicable rules and regulations of the Commission thereunder
and (d) believes that (except for financial
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statements and schedules as to which such counsel need not express any
belief) the Prospectus as of the date such opinion is delivered does not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(x) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act; all filings
required under the laws of the State of Delaware with respect to the
formation and valid existence of the Trust as a business trust have been
made; the Trust has all necessary power and authority to own property and
to conduct its business as described in the Prospectus, to issue and sell
the Preferred Securities and the Common Securities, and to enter into and
perform its obligations under this Agreement, the Preferred Securities,
the Common Securities and the Declaration and to consummate the
transactions herein and therein contemplated; the Trust has no
subsidiaries and is duly authorized to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, and is not
required to be authorized to do business in any other jurisdiction; the
Trust is a special purpose trust as described in the Prospectus and is not
a party to or otherwise bound by any agreement other than those described
in the Prospectus, and is not a party to any action, suit or proceeding of
any nature; the Trust is not and will not be classified as an association
taxable as a corporation for United States federal income tax purposes and
will be treated as a consolidated subsidiary of the Company.
(xi) The Declaration has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and the Trustees and is a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or
other laws affecting creditors' rights generally and by general principles
of equity (whether considered in a proceeding, in equity or at law).
(xii) The Common Securities have been duly authorized and are
validly issued and (subject to the terms of the Declaration) fully paid
and non-assessable beneficial interests, in the assets of the Trust; and
the issuance of the Common Securities is not subject to preemptive or
other similar rights.
(xiii) The Preferred Securities have been duly authorized and
are validly issued and (subject to the terms of the Declaration) when
delivered to and paid for by
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Underwriters pursuant to this Agreement will be validly issued, fully paid
and non-assessable beneficial interests in the assets of the Trust; the
holders of the Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit; and the issuance of the Preferred Securities is
not subject to preemptive or other similar rights.
(xiv) The issuance and sale by the Trust of the Preferred
Securities and Common Securities, the execution, delivery and performance
by the Trust of this Agreement, the Guarantee Agreements, and the
consummation of the transactions contemplated hereby and thereby and
compliance by the Trust with its obligations hereunder and thereunder have
been duly authorized by all necessary actions of the Trust and will not
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Trust is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Trust is subject, nor will such
action result in any violation of the provisions of the Certificate of
Trust or the Declaration, or any applicable law, administrative regulation
or administrative or court decree to which it is subject.
(xv) The Trust is not in violation of its Certificate of
Trust or the Declaration or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or any other
instrument of which the Trust is a party or by which it may be bound, or
to which any of the property or assets of the Trust is subject.
(xvi) The Common Securities, the Preferred Securities, the
Subordinated Debt Securities, the Guarantees, the Declaration, the
Indenture and the Guarantee Agreements conform to all statements relating
thereto contained in the Prospectus.
(xvii) All of the issued and outstanding Common Securities of
the Trust are directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xviii) This Agreement has been duly authorized, executed and
delivered by the Trust and the Company.
(xix) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Company and, (in the case of the
Preferred Security Guarantee Agreement
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only) assuming it is duly authorized, executed, and delivered by the
Property Trustee, constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws involving creditors' rights
generally and general principles of equity (whether considered in a
proceeding at law or in equity); and the Preferred Securities Guarantee
Agreement has been duly qualified under the Trust Indenture Act.
(xx) The Indenture has been duly executed and delivered by
the Company and, assuming due authorization, execution, and delivery
thereof by the Debt Trustee, is a valid and binding obligation of the
Company, enforceable in accordance with its terms, except to the extent
that enforcement thereof may be limited by the bankruptcy, insolvency or
other similar laws involving creditors' rights generally and general
principles of equity (whether considered in a proceeding at law or in
equity); and the Indenture has been duly qualified under the Trust
Indenture Act.
(xxi) The Subordinated Debt Securities are in the form
contemplated by the Indenture; the Subordinated Debt Securities have been
duly authorized, executed and delivered by the Company and when
authenticated by the Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws involving
creditors' rights generally and general principles of equity (whether
considered in a proceeding at law or in equity).
(xxii) The Subordinated Debt Securities are subordinated and
junior in right of payment to all Senior Indebtedness of the Company.
(xxiii) The Company's obligations under the Guarantees are
subordinate and junior in right of payment to all liabilities of the
Company and are pari passu with the most senior preferred stock issued by
the Company.
(xxiv) The Declaration has been duly authorized, executed and
delivered by the Company and each of the Regular Trustees and constitutes
a valid and binding obligation of the Company and each of the Regular
Trustees, enforceable against the Company and each of the Regular Trustees
in accordance with its terms, except to the extent that the enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws
involving creditors' rights
-16-
generally and general principles of equity (whether considered in a
proceeding at law or in equity) .
(xxv) To the best of his knowledge and information, there are
no legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement or Prospectus,
other than those disclosed therein, and all pending legal or governmental
proceedings to which the Company, any of its subsidiaries or the Trust is
a party or to which any of their property is subject which are not
described in the Registration Statement or Prospectus, including ordinary
routine litigation incidental to the business, are, considered in the
aggregate, not material.
(xxvi) No authorization, approval, consent or order of any
court or governmental authority or agency is required in connection with
the issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Subordinated Debt Securities or the Guarantees,
except such as may be required under the Securities Act, and the rules and
regulations promulgated thereunder, state securities law and the
qualification of the Declaration, the Preferred Securities Guarantee
Agreement and the Indenture under the Trust Indenture Act.
(xxvii) The execution, delivery and performance of this
Agreement, the Declaration, the Preferred Securities, the Common
Securities, the Indenture, the Subordinated Debt Securities, the Guarantee
Agreements, the Indenture and the Guarantees and the consummation of the
transactions contemplated herein and therein and compliance by the Company
and the Trust with their respective obligations hereunder and thereunder
have been duly authorized by all necessary action (corporate or otherwise)
and do not and will not result in any violation of the charter or by-laws
of the Company or any subsidiary or the Declaration or Certificate of
Trust, and do not and will not conflict with, or result in a breach of any
of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust or the Company or any subsidiary under (a)
any contract, indenture, mortgage, loan agreement, note, lease or any
other agreement or instrument known to such counsel, to which the Trust or
the Company or any subsidiary is a party or by which it may be bound or to
which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Trust or the
Company and its subsidiaries, considered as one enterprise), (b) any
existing applicable law, rule or regulation (other than the securities or
blue sky laws of
-17-
the various states, as to which such counsel need express no opinion), or
(c) any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or any regulatory body or
administrative agency or other governmental body having jurisdiction over
the Trust, the Company or any Subsidiary or any of their respective
properties.
(d) The Representative shall have received on the Closing Date an
opinion dated the Closing Date of Richards, Layton & Finger, Delaware counsel to
the Company, with respect to the matters returned to in subparagraphs (x), (xi),
(xii), (xiii), (xiv), (xv), (xvi), (xvii), (xviii), (xxiv), (xxv), (xxvi), and
(xxvii).
(e) The Representative shall have received on the Closing Date
opinions dated the Closing Date (i) of Churchill, Manolis, Freeman, Kludt &
Kaufman, South Dakota counsel to the Company, with respect to franchises and
titles to the properties of the Company and the non-necessity of authorization
by any public body of the State of South Dakota with respect to the issuance of
the Common Securities, the Preferred Securities and the Company Securities, (ii)
of Shamberg, Wolf, McDermott & Depue, Nebraska counsel to the Company and the
Trust, with respect to franchises and titles to the properties of the Company
and the non-necessity of authorization by any public body of the State of
Nebraska with respect to the issuance of the Common Securities, the Preferred
Securities and the Company Securities, (iii) of Pearce & Durick, North Dakota
counsel to the Company, with respect to titles to the properties of the Company,
and the non-necessity of authorization by any public body of the State of North
Dakota with respect to the issuance of the Common Securities, the Preferred
Securities and the Company Securities and (iv) of Nymann & Kohl, Iowa counsel to
the Company, with respect to franchises, if any, and titles to the properties of
the Company and the non-necessity of authorization by any public body of the
State of Iowa with respect to the issuance of the Common Securities, the
Preferred Securities and the Company Securities.
(f) The Representative shall have received on the Closing Date,
opinions dated the Closing date of _________________________________, counsel to
Wilmington Trust Company, as Property Trustee under the Declaration, and
Guarantee Trustee under the Guarantee Agreements, in form and substance
satisfactory to counsel for the Underwriters, to the effect that,
(i) Wilmington Trust Company is a Delaware banking corporation
with trust powers, duly organized, validly existing and in good standing
under the laws of the State of Delaware with all necessary power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of the Declaration and the Guarantee
Agreements.
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(ii) The execution, delivery and performance by the Property
Trustee of the Declaration and the Guarantee Agreements have been duly
authorized by all necessary corporate action on the part of the Property
Trustee. The Declaration and the Guarantee Agreements have been duly
executed and delivered by the Property Trustee, and constitutes the legal,
valid and binding obligation of the Property Trustee, enforceable against
the Property Trustee in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws affecting
creditors' rights generally and by general principles of equity (whether
considered in a proceeding in equity or at law).
(iii) The execution, delivery and performance of the Declaration
and the Guarantee Agreements by the Property Trustee does not conflict
with or constitute a breach of the Articles of Organization or Bylaws of
the Property Trustee.
(iv) No consent, approval or authorization of, or registration with
or notice to, any Delaware or federal banking authority is required for
the execution, delivery or performance by the Property Trustee of the
Declaration and the Guarantee Agreements.
(v) The Property Trustee is the record holder of the Subordinated
Debt Securities and the Guarantees and no security interest, mortgage,
pledge, lien, encumbrance, claim or equity is noted thereon or on the
register.
(g) The Representative shall have received on the Closing Date an
opinion dated the Closing Date, of Winthrop, Stimson, Putnam & Roberts, counsel
for the Underwriters, covering such matters as the Underwriters may reasonably
request.
As to matters of South Dakota, Nebraska, North Dakota, Iowa and
Delaware state law, Winthrop, Stimson, Putnam & Roberts and Schiff Hardin &
Waite may rely upon the opinions of even date herewith of Churchill, Manolis,
Freeman, Kludt & Kaufman; Shamberg, Wolf McDermott & Depue; Pearce & Durick and
Nymann & Kohl; and Richards, Layton & Finger, respectively.
With respect to the subparagraph (ix) of paragraph (c) above, Schiff
Hardin & Waite, special counsel to the Company, may state that its opinion and
belief are based upon its participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
thereof, but are without independent check or verification, except as specified.
The opinions of Schiff Hardin & Waite, special counsel to the
Company, Churchill, Manolis, Freeman, Kludt & Kaufman, South Dakota counsel to
the Company, Shamberg, Wolf, McDermott &
-19-
Depue, Nebraska counsel to the Company, Pearce & Durick, North Dakota counsel to
the Company, Nymann & Kohl, Iowa counsel to the Company, and Richards, Layton &
Finger, Delaware counsel to the Company and the Trust described in paragraphs
(d) and (e) above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(g) The Representative shall have received on the date of this
Agreement a letter, dated the date of this Agreement, in form and substance
satisfactory to the Representative, from Arthur Andersen LLP, the Company's
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Prospectus. Such letter shall include,
without limitation, statements to the effect that (i) the unaudited pro forma
condensed consolidated financial statements included or incorporated by
reference in the Prospectus comply as to form with the applicable accounting
requirements of Rule 11-02 of Regulation S-X of the Commission, (ii)
management's assumptions provide a reasonable basis for presenting the
significant effects directly attributable to the Acquisition described in the
notes to the unaudited pro forma condensed consolidated financial statements,
(iii) the related pro forma adjustments give appropriate effect to those
assumptions, and (iv) the pro forma column reflects the proper application of
those adjustments to the historical financial statement amounts contained in
such unaudited pro forma consolidated statements.
(h) The Representative shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to the
Representative, from Arthur Andersen LLP, the Company's independent public
accountants, to the effect that such accountants reaffirm, as of the Closing
Date, and as though made on the Closing Date, the statements made in the letter
furnished by such accountants pursuant to Section 4(g), except that the
specified date referred to therein shall be a date not more than five business
days prior to the Closing Date.
(i) The Representative shall have received on the date of this
Agreement a letter, dated the date of this Agreement, in form and substance
satisfactory to the Representative, from Peat Marwick LLP, Synergy's independent
public accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or incorporated
by reference into the Prospectus.
(j) The Representative shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to the
Representative, from Peat Marwick LLP, Synergy's independent public accountants,
to the effect that
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such accountants reaffirm, as of the Closing Date, and as though made on the
Closing Date, the statements made in the letter furnished by such accountants
pursuant to Section 4(i), except that the specified date referred to therein
shall be a date not more than five business days prior to the Closing Date.
(k) The Representative shall have received a certificate of the
Sellers (as defined in the Acquisition Agreement) consenting to the references
made to them and the Acquisition and to the inclusion (by incorporation or
otherwise) of descriptions and other information with respect thereto
(including, in the case of Synergy, historical financial statements) in the
Registration Statement and the Prospectus.
(l) At the Closing Date, a registration statement on Form 8-A under
the Exchange Act with respect to the Preferred Securities shall be effective and
the Preferred Securities shall have been approved for listing on the New York
Stock Exchange upon notice of issuance.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
at any time at or prior to the Closing Date, and such termination shall be
without liability of any party to any other party except as provided in Section
5(i) hereof.
The several obligations of the Underwriters to purchase Additional
Securities are subject to the delivery on the Option Closing Date of such
document as the Representatives may reasonably request.
5. COVENANTS OF THE TRUST AND THE COMPANY. In further
consideration of the agreements of the Underwriters herein contained, the Trust
and the Company covenant as follows:
(a) To furnish the Representative, without charge, a signed copy
of the Registration Statement (including exhibits thereto) and to deliver to
each other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement as
the Underwriters may reasonably request.
(b) To cause the Prospectus to be filed with the Commission
pursuant to and in compliance with Rule 424 under the Act.
(c) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to the Underwriters a copy of each such proposed
amendment or supplement and not to
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file any such proposed amendment or supplement to which the Underwriters
reasonably object.
(d) If, during such period after the first date of the public
offering of the Preferred Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters, and to the dealers (whose
names and addresses the Representative will furnish to the Company) to which
Preferred Securities may have been sold by the Underwriters on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with law.
(e) To endeavor to qualify the Preferred Securities and
Subordinated Debt Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Underwriters shall reasonably request and to
maintain such qualification for as long as the Underwriters shall reasonably
request.
(f) To make generally available to the Trust's security holders
and to the Representative as soon as practicable an earning statement covering a
twelve month period beginning on the first day of the first full fiscal quarter
after the date of the Underwriting Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder. If such fiscal quarter is the last
fiscal quarter of the Company's fiscal year, such earning statement shall be
made available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(g) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company or
the Trust or warrants to purchase debt securities of the Company or the Trust
substantially similar to the Preferred Securities (other than (i) the Preferred
Securities, (ii) commercial paper issued in the ordinary course of business and
(iii) other debt securities
-22-
evidencing commercial bank loans), without the prior written consent of the
Representative.
(h) Whether or not any sale of Preferred Securities is
consummated, to pay all expenses incident to the performance of its obligations
under the Underwriting Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and supplements
thereto, (ii) the preparation, issuance and delivery of the Preferred
Securities, (iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustee and its counsel, (iv) the qualification of the
Preferred Securities under securities or Blue Sky laws in accordance with the
provisions of Section 5(d), including filing fees and the fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with
the preparation of any Blue Sky Memoranda in an aggregate amount not to exceed
$10,000, (v) the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Registration Statement and all amendments
thereto and of the Prospectus and any amendments or supplements thereto, (vi)
any fees charged by rating agencies for the rating of the Preferred Securities,
(vii) the fees and expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc., and (viii) the fees and
expenses, if any, incurred in connection with the listing of the Preferred
Securities on any securities exchange.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Trust agree to jointly and severally indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
by any Underwriter or any such controlling person in connection with
investigating or defending any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company or the Trust shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company or the Trust in
writing by such Underwriter expressly for use therein.
(b) The Company agrees jointly and severally to indemnify the Trust
against all loss, liability, claim, damage and expense whatsoever, as due from
the Trust under Section 6(a) hereof.
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(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the directors, officers or Trustees of the Company
or the Trust who sign the Registration Statement and each person, if any, who
controls the Company or the Trust within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company and the Trust to such Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Company and Trust in writing by such Underwriter expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representative, in the case of parties indemnified
pursuant to paragraph (a) above, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying
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party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Trust on the one hand and the
Underwriters on the other hand from the offering of the Preferred Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company or the Trust on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Trust on
the one hand and the Underwriters on the other hand in connection with the
offering of the Preferred Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such Securities
(before deducting expenses) received by the Company and the Trust and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Preferred Securities. The
relative fault of the Company and the Trust on the one hand and of the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Trust or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 6 are several in
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proportion to the respective principal amounts of Preferred Securities they have
purchased hereunder, and not joint.
(f) The Company, the Trust and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Preferred Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
7. TERMINATION. This Agreement shall be subject to
termination, by notice given by the Representative to the Company and the Trust,
if (a) after the execution and delivery of the Underwriting Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or thee Chicago Board of Trade, (ii) trading of any securities of the
Trust or the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representative, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event, singly or together with any other such event, makes it, in the judgment
of the Representative, impracticable to market the Preferred Securities on the
terms and in the manner contemplated in the Prospectus. This Agreement may also
be terminated at any time prior to the Closing Date if in the judgment of the
Representative the subject matter of any amendment or supplement
-26-
to the Registration Statement or Prospectus prepared and furnished by the
Company or the Trustee reflects a material adverse change in the business,
properties or financial condition of the Company or the Trust which renders it
either inadvisable to proceed with such offering, if any, or inadvisable to
proceed with the delivery of the Preferred Securities to be purchased hereunder.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date or the
Option Closing Date, as the case may be, any one or more of the Underwriters
shall fail or refuse to purchase the Preferred Securities that it has or they
have agreed to purchase hereunder on such date, and the aggregate amount of
Preferred Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
amount of the Preferred Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the amount of
Preferred Securities set forth opposite their respective names in the
Underwriting Agreement bears to the aggregate amount of Preferred Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representative may specify, to purchase the Preferred
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; PROVIDED that in no event shall the
amount of Preferred Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 8 by an amount
in excess of one-ninth of such amount of Preferred Securities without the
written consent of such Underwriter. If, on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Securities that it has or they have agreed to purchase and
the aggregate amount of Preferred Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of Preferred Securities to
be purchased on such date, and arrangements satisfactory to the Representative
and the Company for the purchase of such Preferred Securities are not made
within 36 hours after such default, the Underwriting Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Trust. In any such case either the Representative or the Company shall have
the right to postpone the Closing Date or the Option Closing Date, as the case
may be, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under the Underwriting Agreement.
If the Underwriting Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the part of
the Company or the Trust to comply with the terms or to fulfill any of the
conditions of the Underwriting
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Agreement, or if for any reason the Company or the Trust shall be unable to
perform its obligations under the Underwriting Agreement, the Company and the
Trust will reimburse the Underwriters or such Underwriters as have so terminated
the Underwriting Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Underwriting
Agreement or the offering of the Preferred Securities.
If the Underwriting Agreement shall be terminated by the Company
because of any failure or refusal on the part of the Underwriters to comply with
the terms or to fulfill any of the conditions of the Underwriting Agreement, or
if for any reason the Underwriters shall be unable to perform their obligations
under the Underwriting Agreement, the Underwriters will reimburse the Company
for all out-of-pocket expenses (including the fees and disbursements of its
counsel) reasonably incurred by the Company in connection with the Underwriting
Agreement or the offering of the Preferred Securities.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the officers or Trustees of the Company and the Trust (as
the case may be) and the Underwriters set forth in the Underwriting Agreement
will remain in full force and effect, regardless of any termination of the
Underwriting Agreement, any investigation made by or on behalf of any
Underwriter, the Company or the Trust or any of the officers, directors or
controlling persons referred to in Section 6 and delivery of and payment for the
Preferred Securities.
10. SUCCESSORS. This Agreement will enure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 6, and no
other person will have any right or obligation hereunder.
11. COUNTERPARTS. The Underwriting Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. The Underwriting Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York.
13. HEADINGS. The headings of the sections of the Underwriting
Agreement have been inserted for convenience of reference only and shall not be
deemed a part of the Underwriting Agreement.
14. NOTICES. All communications hereunder will be in writing
and, if sent to (i) the Underwriters, will be mailed,
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delivered or telecopied and confirmed to Morgan Stanley & Co. Incorporated at
__________________, (ii) the Company, will be mailed, delivered or telecopied
and confirmed to it at 33 Third Street SE, Huron, South Dakota 57350, Attn: Mr.
Richard R. Hylland, Vice President -- Finance & Corporate Development, Telecopy
No: (605) 353-8286 and (iii) the Trust, will be mailed, delivered or telecopied
and confirmed to it at 33 Third Street SE, Huron, South Dakota 57350.
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Please confirm your agreement by having an authorized officer sign a
copy of the Underwriting Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
---------------------------------
---------------------------------
Acting severally on behalf of itself and the
several Underwriters named herein
By: MORGAN STANLEY & CO. INCORPORATED
By:
-------------------------------
Name:
Title:
Accepted, , 1995
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NWPS CAPITAL FINANCING I
By:
-------------------------------
Name:
Title: Trustee
By:
-------------------------------
Name:
Title: Trustee
NORTHWESTERN PUBLIC SERVICE COMPANY
By:
-------------------------------
Name:
Title:
SCHEDULE I
Number of
Name of Underwriter Preferred Securities
- ------------------- --------------------
Morgan Stanley & Co. Incorporated. . . . . . . . . . . . .
----------
. . . . . . . . . . . . . . . . . . . .
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. . . . . . . . . . . . . . . . . . . .
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Total
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