AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of January 8, 2003
(this "Amendment"), among NORTHWESTERN CORPORATION, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions from time to
time party hereto and CREDIT SUISSE FIRST BOSTON, as Administrative Agent (in
such capacity the "Administrative Agent").
A. Reference is made to that certain Credit Agreement, dated as
of December 17, 2002, among the Borrower, the several banks and other financial
institutions from time to time party thereto (each, a "Lender" and,
collectively, the "Lenders"), Credit Suisse First Boston, and the Administrative
Agent (as the same has been or may be further amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), pursuant to which the
Lenders have extended and agreed to extend credit to the Borrower on the terms
and subject to the conditions set forth therein.
B. The Borrower has requested that the Credit Agreement be
amended in accordance with the terms set forth herein.
C. Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
A G R E E M E N T
SECTION 1. Definitions. Unless otherwise specifically defined
herein, capitalized terms used herein shall have their respective meanings
assigned to such terms in the Credit Agreement.
SECTION 2. Amendment. Subject to the effectiveness of this
Amendment in accordance with Section 4 hereof, the Credit Agreement is hereby
amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by
inserting the following definitions to appear in alphabetical order:
`"Amendment No. 1 to Credit Agreement" shall mean Amendment No. 1
to Credit Agreement, dated as of January 8, 2003 among the Borrower, the
several banks and other financial institutions from time to time party
thereto and Credit Suisse First Boston, as administrative agent.'
`"Commitment Fee" shall have the meaning ascribed thereto in
Section 2.4(a).'
(b) Section 2.1 of the Credit Agreement is hereby amended by
replacing the text "in a principal amount not to exceed such Lender's
Commitment" with the following text:
"in a principal amount equal to such Lender's Commitment".
(c) Section 2.3 of the Credit Agreement is hereby amended by
replacing clause (2) with the following text:
"(2) the aggregate amount to be borrowed (which shall be
$390,000,000),".
(d) Section 2.4 of the Credit Agreement is hereby deleted in its
entirety and replaced with the following in place thereof:
"(a) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee
(each a "Commitment Fee"), which shall accrue at seven and three-quarter
percent (7.75%) per annum on the daily amount of the Commitment of such
Lender then outstanding during the period from and including January 17,
2003 to but excluding the earlier of the Cash Collateral Release Date
and the date on which such Commitments terminate. Accrued Commitment
Fees shall be payable on the Cash Collateral Release Date or upon the
termination of the Commitments. All Commitment Fees shall be computed on
the basis of a 360-day year and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day).
(b) Administrative Agent Fees. The Borrower agrees to pay to the
Administrative Agent, for the account of CSFB or the Administrative
Agent, concurrent with signing of this Agreement (or as otherwise
specified therein), such fees as agreed to between the Borrower and
CSFB.
(c) Fees Generally. All fees payable hereunder shall be paid on
the dates due, in immediately available funds, to the Administrative
Agent for the benefit of the parties entitled thereto. Fees paid shall
not be refundable under any circumstances."
(e) Section 2.6(d) of the Credit Agreement is hereby deleted in
its entirety and replaced with the following in place thereof:
"(d) Mandatory Prepayment or Termination. If the Cash Collateral
Release Date has not occurred on or prior to February 10, 2003, then the
Loans shall become due and payable in full on February 11, 2003 and the
Borrower shall prepay the Loans on such date (or if no Loans are then
outstanding, the Commitments (and the Lenders' obligations hereunder to
extend any credit) shall terminate in full) and the Borrower shall pay
on such date to the Administrative Agent for the account of each Lender
a non-refundable termination fee equal to one percent (1%) of such
Lenders' Loans (or Commitment, as applicable)."
SECTION 3. Representations and Warranties. The Borrower represents and
warrants as of the date hereof to each of the Administrative Agent and the
Lenders that after giving effect to this Amendment:
(a) The representations and warranties set forth in the Credit
Agreement are true and correct in all material respects except to the extent
such representations and warranties expressly related to an earlier date;
(b) The Borrower is in compliance in all material respects with
all other terms and provisions contained in the Credit Agreement required to be
observed or performed;
(c) No Default or Event of Default has occurred and is
continuing;
(d) The Borrower has the corporate power and authority to
execute, deliver and perform this Amendment and has taken all corporate actions
necessary to authorize the execution, delivery and performance of this
Amendment;
(e) This Amendment has been duly executed and delivered on behalf
of the Borrower by a duly authorized officer or attorney-in-fact of the
Borrower;
(f) The execution, delivery and performance of this Amendment
will not violate any Requirement of Law or any material contractual obligation
binding on the Borrower or any of its Subsidiaries; and
(g) No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection with the execution, delivery or performance by the
Borrower of this Amendment.
The Borrower acknowledges and agrees that the representations and warranties set
forth above shall survive the execution and delivery hereof and shall be deemed
made in the Credit Agreement for purposes of Section 7.1(b) of the Credit
Agreement.
SECTION 4. Effectiveness. This Amendment shall become effective
on the date the Administrative Agent receives (i) counterparts of this Amendment
that, when taken together, bear the signatures of the Borrower and of CSFB, and
(ii) payment of all of its reasonable out-of-pocket costs and expenses incurred
in connection with this Amendment (including, without limitation, reasonable
fees and expenses of its counsel) for which invoices have been submitted to the
Borrower. The Administrative Agent shall promptly notify the Borrower and the
Lenders of the effective date hereof, and such notice shall be conclusive and
binding on all parties hereto.
SECTION 5 Miscellaneous. (a) Except as expressly set forth
herein, this Amendment shall not, by implication or otherwise, limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders or the Administrative Agent, under the Credit Agreement or any other
Loan Document, and shall not alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle the Borrower to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement in
similar or different circumstances. This Amendment shall apply and be effective
only with respect to the provisions of the Credit Agreement specifically
referred to herein. Upon this Amendment
becoming effective as provided herein, the term "Loan Document" as defined in
the Credit Agreement shall include, without limitation, this Amendment.
(b) As used in the Credit Agreement, the terms "Agreement,"
"herein," "hereinafter," "hereunder," "hereto," and words of similar
import shall mean, from and after the date hereof, the Credit Agreement
as amended by this Amendment.
(c) Section headings used herein are for convenience of reference
only and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amendment.
(d) THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. The parties hereto each
hereby consents to the non-exclusive jurisdiction of the state and
federal courts of the State of New York and irrevocably waives all right
to trial by jury in any action, proceeding or counterclaim arising out
of or relating to this Amendment.
(e) This Amendment may be executed in any number of counterparts,
each of which shall be an original but all of which, when taken
together, shall constitute but one instrument. Delivery of an executed
counterpart of this Amendment by fax will be deemed as effective
delivery of an originally executed counterpart.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first written.
BORROWER:
NORTHWESTERN CORPORATION
By: /s/ Eric R. Jacobsen
------------------------------------
Name: Eric R. Jacobsen
Title: Senior Vice President,
General Counsel & Chief
Legal Officer
ADMINISTRATIVE AGENT:
CREDIT SUISSE FIRST BOSTON
By: /s/ James P. Moran
------------------------------------
Name: James P. Moran
Title: Director
By: /s/ S. William Fox
------------------------------------
Name: S. William Fox
Title: Vice President
LENDER
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By: /s/ James P. Moran
------------------------------------
Name: James P. Moran
Title: Director
By: /s/ S. William Fox
------------------------------------
Name: S. William Fox
Title: Vice President
Signature Page to Amendment No. 1 to Credit Agreement