AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of February 6, 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, acting through its CAYMAN
ISLANDS BRANCH, 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"), the Administrative Agent, as amended by Amendment
No. 1 dated as of January 8, 2003 (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) The definition of "Permitted Liens" set forth in Section 1.1
of the Credit Agreement is amended by (x) renumbering clauses (p) and
(q) therein as clauses (q) and (r) respectively, and(y) inserting a new
clause (p) as follows:
"(p) cash and cash equivalent collateral in an aggregate amount
not to exceed $40,000,000 at any time securing reimbursement and
other obligations of the type permitted under clause (b) of
Section 6.10 (and related fee and expense indemnity
obligations);"
(b) Section 1.1 of the Credit Agreement is hereby amended by
inserting the following definitions to appear in alphabetical order:
`"Amendment No. 2 to Credit Agreement" shall mean Amendment No. 2
to Credit Agreement, dated as of February 6, 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.'
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, the Required
Lenders and the Administrative Agent, and (ii) payment of all of the
Administrative Agent's 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 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 above written.
BORROWER:
NORTHWESTERN CORPORATION
By: /s/ Kipp D. Orme
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Kipp D. Orme
Vice President and Chief Financial Officer
ADMINISTRATIVE AGENT:
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By: /s/ S. William Fox
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Name: S. William Fox
Title: Director
By: /s/ Brian Caldwell
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Name: Brian Caldwell
Title: Director
Signature Page to
Amendment No. 2 to Credit Agreement
LENDERS:
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By: /s/ S. William Fox
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Name: S. William Fox
Title: Director
By: /s/ Brian Caldwell
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Name: Brian Caldwell
Title: Director
FIR TREE RECOVERY MASTER FUND, L.P.
By: /s/ Scott Henkin
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Name: Scott Henkin
Title: Authorized Signatory
FIR TREE VALUE PARTNERS, LDC
By: /s/ Scott Henkin
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Name: Scott Henkin
Title: Authorized Signatory
BEAL BANK, S.S.B.
By: /s/ W. T. Sauronmeau
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Name: W. T. Sauronmeau
Title: S.V.P.
Signature Page to
Amendment No. 2 to Credit Agreement
AG CAPITAL FUNDING PARTNERS, L.P.
By:
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Name:
Title:
NORTHWOODS CAPITAL II, LIMITED
By:
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Name:
Title:
NORTHWOODS CAPITAL III, LIMITED
By:
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Name:
Title:
NORTHWOODS CAPITAL, LIMITED
By:
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Name:
Title:
Signature Page to
Amendment No. 2 to Credit Agreement
A3 FUNDING LP
By:A3 FUND MANAGEMENT LLC
Its: General Partner
By: /s/ Alexander J. Oinstein
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Name: Alexander J. Oinstein
Title: Vice President
ABLECO FINANCE LLC
By: /s/ Alexander J. Oinstein
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Name: Alexander J. Oinstein
Title: Vice President
FOOTHILL INCOME TRUST, L.P.
By:
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Name:
Title:
SILVER OAK CAPITAL, LLC, as Agent for
certain Lenders
By:
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Name:
Title:
Signature Page to
Amendment No. 2 to Credit Agreement
FARALLON CAPITAL INSTITUTIONAL
PARTNERS II, L.P.
By:
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Name:
Title:
FARALLON CAPITAL INSTITUTIONAL
PARTNERS III, L.P.
By:
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Name:
Title:
FARALLON CAPITAL INSTITUTIONAL PARTNERS, L.P.
By:
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Name:
Title:
FARALLON CAPITAL PARTNERS, L.P.
By:
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Name:
Title:
TINICUM PARTNERS, L.P.
By:
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Name:
Title:
Signature Page to
Amendment No. 2 to Credit Agreement
HIGHLAND CRUSADER OFFSHORE PARTNERS, L.P.
By:
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Name:
Title:
HIGHLAND LEGACY LIMITED
By:
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Name:
Title:
HIGHLAND LOAN FUNDING V LTD.
By:
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Name:
Title:
PROSPECT STREET HIGH INCOME PORTFOLIO INC.
By:
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Name:
Title:
Signature Page to
Amendment No. 2 to Credit Agreement
RESTORATION FUNDING CLO, LTD.
By:
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Name:
Title:
GALAXY CLO 1999-1, LTD.
By:
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Name:
Title:
SUNAMERICA LIFE INSURANCE COMPANY
By:
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Name:
Title:
Signature Page to
Amendment No. 2 to Credit Agreement
KZH RIVERSIDE LLC
By: /s/ Rowena Smith
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Name: Rowena Smith
Title: Authorized Agent
KZH SOLEIL LLC
By: /s/ Rowena Smith
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Name: Rowena Smith
Title: Authorized Agent
KZH SOLEIL-2 LLC
By: /s/ Rowena Smith
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Name: Rowena Smith
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By: /s/ Rowena Smith
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Name: Rowena Smith
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Rowena Smith
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Name: Rowena Smith
Title: Authorized Agent
Signature Page to
Amendment No. 2 to Credit Agreement
KZH STERLING LLC
By: /s/ Rowena Smith
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Name: Rowena Smith
Title: Authorized Agent
CENTURION CDO II, LTD.
By:
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Name:
Title:
CENTURION CDO VI, LTD.
By:
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Name:
Title:
CENTURION CDO VI, LTD.
By:
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Name:
Title:
SEQUILS-CENTURION V, LTD.
By:
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Name:
Title:
Signature Page to
Amendment No. 2 to Credit Agreement
MARINER LDC
By: /s/ Charles R. Howe, II
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Name: Charles R. Howe, II
Title: Director
D. E. SHAW LAMINAR PORTFOLIOS, L.L.C.,
by D. E. Shaw & Co., L.L.C., its managing
member
By:
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Name:
Title:
MARINER OPPORTUNITIES FUND, L.P.
By: /s/ Charles R. Howe, II
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Name: Charles R. Howe, II
Title: Director
Signature Page to
Amendment No. 2 to Credit Agreement