Exhibit
4.3


 


$225,000,000


 


NorthWestern
Corporation


 


5.875%
Senior Secured Notes due 2014


 


REGISTRATION
RIGHTS AGREEMENT


 


November 1, 2004


 


Credit Suisse First
Boston LLC


Lehman Brothers Inc.,


As Representatives of the
Several Initial Purchasers


c/o Credit Suisse First
Boston LLC


Eleven Madison
Avenue


New York, New York
10010-3629


 


Dear Sirs:


 


NorthWestern Corporation, a Delaware corporation (the “Company”),
proposes to issue and sell to the several initial purchasers named in Schedule
A hereto (collectively, the “Initial Purchasers”), upon the terms set forth in
a purchase agreement, dated October 25, 2004 (the “Purchase Agreement”), among
the Company and the Initial Purchasers, $225,000,000 aggregate principal amount
of its 5.875% Senior Secured Notes due 2014 (the “Initial Securities”)  The Initial Securities will be issued
pursuant to an Indenture, dated as of November 1, 2004, as supplemented by a
supplemental indenture thereto (the “Indenture”), between the Company and US
Bank National Association, as trustee (the “Trustee”).  As an inducement to the Initial Purchasers,
the Company agrees with the Initial Purchasers, for the benefit of the holders
of the Initial Securities (including, without limitation, the Initial
Purchasers), the Exchange Securities (as defined below) and the Private
Exchange Securities (as defined below) (collectively the “Holders”), as
follows:


 


1.     Registered Exchange Offer. 
Unless not permitted by applicable law or applicable interpretations of
the Staff of the Securities and Exchange Commission (the “Commission”), the
Company shall, at its own cost, prepare and, not later than 180 days after (or
if the 180th day is not a business day, the first business day thereafter) (such
day being the “Exchange Offer Filing Deadline”) the date of original issue of
the Initial Securities (the “Issue Date”), file with the Commission a
registration statement (the “Exchange Offer Registration Statement”) on an
appropriate form under the Securities Act of 1933, as amended (the “Securities
Act”), with respect to a proposed offer (the “Registered Exchange Offer”) to
the Holders of Transfer Restricted Securities (as defined in Section 6 hereof),
who are not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to issue and deliver to such
Holders, in exchange for the Initial Securities, a like aggregate principal
amount of debt securities (the “Exchange Securities”) of the Company issued
under the Indenture and identical in all material respects to the Initial
Securities (except for the transfer restrictions relating to the Initial
Securities and the provisions relating to the matters described in Section 6
hereof) that are registered under the Securities Act.  To the extent required by the Securities Act,
the Company shall also register the Collateral Bonds (as such term is defined
in the Purchase Agreement) in the Exchange Offer Registration Statement.  The Company shall use its commercially
reasonable efforts to cause such Exchange Offer Registration Statement to
become effective under the Securities Act within 270 days (or if the 270th day
is not a business day, the first business day thereafter) (such day being the “Exchange
Offer Effectiveness Deadline”) after the Issue Date of the Initial Securities
and shall keep the Exchange Offer Registration Statement effective for not less
than 30 days (or longer, if required by applicable law) after the


 





















 


date notice of the Registered Exchange Offer is mailed to the Holders
(such period being called the “Exchange Offer Registration Period”).


 


If the Company effects
the Registered Exchange Offer, the Company will be entitled to close the
Registered Exchange Offer 30 days after the commencement thereof provided that
the Company has accepted all the Initial Securities theretofore validly
tendered in accordance with the terms of the Registered Exchange Offer.


 


Following the declaration of the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder of Transfer Restricted Securities (as defined in
Section 6 hereof) electing to exchange the Initial Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company within
the meaning of the Securities Act, acquires the Exchange Securities in the
ordinary course of such Holder’s business and has no arrangements with any
person to participate in the distribution of the Exchange Securities and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of the several
states of the United States.


 


The Company acknowledges that, pursuant to current
interpretations by the Commission’s staff of Section 5 of the Securities Act,
in the absence of an applicable exemption therefrom, (i) each Holder which is a
broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading activities,
for Exchange Securities (an “Exchanging Dealer”), is required to deliver a
prospectus containing the information set forth in (a) Annex A hereto on the
cover, (b) Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose
of the Exchange Offer” section, and (c) Annex C hereto in the “Plan of
Distribution” section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Exchange Securities acquired in exchange for Initial Securities constituting
any portion of an unsold allotment is required to deliver a prospectus
containing the information required by Items 507 or 508 of Regulation S-K under
the Securities Act, as applicable, in connection with such sale.


 


The Company shall use its commercially reasonable
efforts to keep the Exchange Offer Registration Statement effective and to
amend and supplement the prospectus contained therein, in order to permit such
prospectus to be lawfully delivered by all persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as such
persons must comply with such requirements in order to resell the Exchange
Securities; provided, however, that (i) in the case where such prospectus and
any amendment or supplement thereto must be delivered by an Exchanging Dealer
or an Initial Purchaser, such period shall be the lesser of 180 days and the
date on which all Exchanging Dealers and the Initial Purchasers have sold all
Exchange Securities held by them (unless such period is extended pursuant to
Section 3(j) below) and (ii) the Company shall make such prospectus and any
amendment or supplement thereto, available to any broker-dealer for use in
connection with any resale of any Exchange Securities for a period of not less
than 90 days after the consummation of the Registered Exchange Offer.


 


If, upon consummation of the Registered Exchange
Offer, any Initial Purchaser holds Initial Securities acquired by it as part of
its initial distribution, the Company, simultaneously with the delivery of the
Exchange Securities pursuant to the Registered Exchange Offer, shall issue and
deliver to such Initial Purchaser upon the written request of such Initial
Purchaser, in exchange (the “Private Exchange”) for the Initial Securities held
by such Initial Purchaser, a like principal amount of debt securities of the
Company issued under the Indenture and identical in all material respects
(including the existence of restrictions on transfer under the Securities Act
and the securities laws of the several states of the United States, but
excluding provisions relating to the matters described in Section 6 hereof) to
the Initial Securities (the “Private Exchange Securities”).  The Initial Securities, the Exchange
Securities and the Private Exchange Securities are herein collectively called
the “Securities”.


 


In connection with the Registered Exchange Offer, the
Company shall:


 


(a)     mail to
each Holder a copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and
related documents;


 


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(b)     keep the
Registered Exchange Offer open for not less than 20 days (or longer, if
required by applicable law) after the date notice thereof is mailed to the
Holders;


 


(c)     utilize
the services of a depositary for the Registered Exchange Offer with an address
in the Borough of Manhattan, The City of New York, which may be the Trustee or
an affiliate of the Trustee;


 


(d)     permit
Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last business day on which the Registered
Exchange Offer shall remain open; and


 


(e)     otherwise
comply with all applicable laws.


 


As soon as practicable after the close of the
Registered Exchange Offer or the Private Exchange, as the case may be, the
Company shall, directly or indirectly:


 


(x)     accept for exchange all the Securities
validly tendered and not withdrawn pursuant to the Registered Exchange Offer
and the Private Exchange;


 


(y)     deliver to the Trustee for cancellation all
the Initial Securities so accepted for exchange; and


 


(z)     cause the Trustee to authenticate and
deliver promptly to each Holder of the Initial Securities, Exchange Securities
or Private Exchange Securities, as the case may be, equal in principal amount
to the Initial Securities of such Holder so accepted for exchange.


 


The Indenture will provide that the Exchange
Securities will not be subject to the transfer restrictions set forth in the
Indenture and that all the Securities will vote and consent together on all
matters as one class and that none of the Securities will have the right to
vote or consent as a class separate from one another on any matter.


 


Interest on each Exchange Security and Private
Exchange Security issued pursuant to the Registered Exchange Offer and in the
Private Exchange will accrue from the last interest payment date on which
interest was paid on the Initial Securities surrendered in exchange therefor or,
if no interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.


 


Each Holder participating in the Registered Exchange
Offer shall be required to represent to the Company that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,”
as defined in Rule 405 of the Securities Act, of the Company or if it is an
affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Securities and (v) if
such Holder is a broker-dealer, that it will receive Exchange Securities for
its own account in exchange for Initial Securities that were acquired as a
result of market-making activities or other trading activities and that it will
be required to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Securities.


 


Notwithstanding any other provisions hereof, the
Company will ensure that (i) any Exchange Offer Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective, contain an 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 and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.


 


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2.     Shelf Registration. 
If, (i) because of any change in law or in applicable interpretations
thereof by the staff of the Commission, the Company is not permitted to effect
a Registered Exchange Offer, as contemplated by Section 1 hereof, as of the
Exchange Offer Filing Deadline, (ii) the Registered Exchange Offer is not
consummated by the 310th day following the Issue Date (such day being the “Exchange
Offer Consummation Deadline”), (iii) any Initial Purchaser so requests in
writing during the 20 business days following consummation of the Exchange
Offer (such period being a “Shelf Registration Notice Period”) with respect to
the Initial Securities (or the Private Exchange Securities) not eligible to be
exchanged for Exchange Securities in the Registered Exchange Offer and held by
it following consummation of the Registered Exchange Offer or (iv) any Holder
(other than an Exchanging Dealer) notifies the Company in writing during the
Shelf Registration Notice Period that, based upon an opinion of counsel
reasonably satisfactory to the Company, it was not eligible to participate in
the Registered Exchange Offer or, if such Holder participates in the Registered
Exchange Offer, such Holder will not receive freely tradeable Exchange
Securities on the date of the exchange, the Company shall take the following
actions:


 


(a)     The
Company shall, at its cost, as promptly as practicable (but in no event more
than 90 days after the Exchange Offer Filing Deadline (in the case of (i)
above), the Exchange Offer Consummation Deadline (in the case of (ii) above) or
the expiration of the Shelf Registration Notice Period (in the case of (iii)
and (iv) above) (each such day being a “Shelf Registration Filing Deadline”)),
file with the Commission and thereafter shall use its commercially reasonable
efforts to cause to be declared effective a registration statement (the “Shelf
Registration Statement” and, together with the Exchange Offer Registration
Statement, a “Registration Statement”) on an appropriate form under the
Securities Act relating to the offer and sale of the Transfer Restricted
Securities (as defined in Section 6 hereof) by the Holders thereof from time to
time in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (hereinafter, the “Shelf
Registration”); provided, however, that no Holder (other than an Initial
Purchaser) shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound
by all the provisions of this Agreement applicable to such Holder; provided,
further, that, to the extent required by the Securities Act, the Company shall
also register the Mortgage Bonds in the Shelf Registration Statement and
provided, further, that, to the extent the Company was obligated to file a
Shelf Registration Statement solely because it did not consummate the
Registered Exchange Offer in a timely fashion by the Exchange Offer
Consummation Deadline as described in (ii) above, the Company need not file or
continue the filing of any such Shelf Registration Statement if the Exchange
Offer is consummated subsequent to the Exchange Offer Consummation Deadline (it
being understood that, to the extent the Company is or was obligated to file a
Shelf Registration Statement for any other purpose, such obligation will remain
binding).


 


(b)     The
Company shall use its commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the relevant
Securities, for a period of two years (or for such longer period if extended
pursuant to Section 3(j) below) from the date of its effectiveness or such
shorter period that will terminate when all the Securities covered by the Shelf
Registration Statement (i) have been sold pursuant thereto or (ii) are
distributed to the public pursuant to Rule 144 under the Securities Act, or any
successor rule thereof, are saleable pursuant to Rule 144(k) under the
Securities Act, or any successor rule thereof, or are otherwise no longer
restricted securities (as defined in Rule 144 under the Securities Act, or any
successor rule thereof) (the “Shelf Registration Termination Date”).  The Company shall be deemed not to have used
its commercially reasonable efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action that
would result in Holders of Securities covered thereby not being able to offer
and sell such Securities during that period, unless (i) such action is required
by applicable law, (ii) the Company complies with this Agreement or (iii) such
action is taken by the Company in good faith and for valid business reasons
(not including avoidance by the Company of its obligations hereunder),
including the acquisition or divestiture of assets, so long as such action does
not result in a lapse in the effectiveness of the Shelf Registration Statement
of more than 45 consecutive days or 60 days within a twelve month period and
the Company promptly thereafter complies with the requirements of Section 3(j)
hereof, if applicable.


 


(c)     Notwithstanding
any other provisions of this Agreement to the contrary, the Company shall cause
the Shelf Registration Statement and the related prospectus and any amendment
or supplement


 


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thereto, as of the effective date of the Shelf Registration Statement,
amendment or supplement, (i) to comply in all material respects with the
applicable requirements of the Securities Act and the rules and regulations of
the Commission and (ii) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein (in the case of any prospectus, in light
of the circumstances under which they were made), not misleading.


 


No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnished to
the Company in writing, within 10 days after receipt of a written request
therefor, the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Securities Act for use in connection with any Shelf
Registration Statement or Prospectus or preliminary prospectus included
therein.  Each selling Holder agrees to
promptly furnish additional information required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
materially misleading.


 


3.     Registration Procedures. 
In connection with any Shelf Registration contemplated by Section 2
hereof and, to the extent applicable, any Registered Exchange Offer
contemplated by Section 1 hereof, the following provisions shall apply:


 


(a)     The
Company shall (i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that an Initial Purchaser (with respect to any
portion of an unsold allotment from the original offering) is participating in
the Registered Exchange Offer or the Shelf Registration Statement, the Company
shall use its commercially reasonable efforts to reflect in each such document,
when so filed with the Commission, such comments as such Initial Purchaser reasonably
may propose; (ii) include the information set forth in Annex A hereto on the
cover, in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose
of the Exchange Offer” section and in Annex C hereto in the “Plan of
Distribution” section of the prospectus forming a part of the Exchange Offer
Registration Statement and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; (iii) if requested by an Initial Purchaser, include the information
required by Items 507 or 508 of Regulation S-K under the Securities Act, as
applicable, in the prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution,” reasonably
acceptable to the Initial Purchasers, which shall contain a summary statement
of the positions taken or policies made by the staff of the Commission with
respect to the potential “underwriter” status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) of Exchange Securities received by such
broker-dealer in the Registered Exchange Offer (a “Participating Broker-Dealer”),
whether such positions or policies have been publicly disseminated by the staff
of the Commission or such positions or policies, in the reasonable judgment of
the Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the Commission; and
(v) in the case of a Shelf Registration Statement, include the names of the
Holders, who propose to sell Securities pursuant to the Shelf Registration
Statement, as selling securityholders.


 


(b)     The
Company shall give written notice to the Initial Purchasers, the Holders of the
Securities and any Participating Broker-Dealer from whom the Company has
received prior written notice that it will be a Participating Broker-Dealer in
the Registered Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):


 


(i)            when
the Registration Statement or any amendment thereto has been filed with the
Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;


 


(ii)           of
any request by the Commission for amendments or supplements to the Registration
Statement or the prospectus included therein or for additional information;


 


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(iii)          of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose;


 


(iv)          of
the receipt by the Company or its legal counsel of any notification with
respect to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and


 


(v)           of
the happening of any event that requires the Company to make changes in the
Registration Statement or the prospectus in order that the Registration
Statement or the prospectus do not contain an untrue statement of a material
fact nor omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the prospectus, in
light of the circumstances under which they were made) not misleading.


 


(c)     The
Company shall use its commercially reasonable effort to obtain the withdrawal
at the earliest possible time, of any order suspending the effectiveness of the
Registration Statement.


 


(d)     The
Company shall furnish to each Holder of Securities included within the coverage
of the Shelf Registration, without charge, at least one copy of the Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (including those, if any, incorporated by reference).


 


(e)     The
Company shall deliver to each Exchanging Dealer and each Initial Purchaser, and
to any other Holder who so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if any Initial Purchaser or
any such Holder requests, all exhibits thereto (including those incorporated by
reference).


 


(f)      The
Company shall, during the Shelf Registration Period, deliver to each Holder of
Securities included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each preliminary
prospectus) included in the Shelf Registration Statement and any amendment or
supplement thereto as such person may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use of the prospectus or
any amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities covered
by the prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.


 


(g)     The
Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer, without charge, as many
copies of the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons may
reasonably request.  The Company
consents, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by any Initial Purchaser, if necessary,
any Participating Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer in connection with the
offering and sale of the Exchange Securities covered by the prospectus, or any
amendment or supplement thereto, included in such Exchange Offer Registration
Statement.


 


(h)     Prior to
any public offering of the Securities, pursuant to any Registration Statement,
the Company shall use its commercially reasonable effort to register or qualify
or cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification of the
Securities for offer and sale under the securities or “blue sky” laws of such
states of the United States as any Holder of the Securities reasonably requests
in writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities covered by
such Registration Statement; provided, however, that the Company shall not be
required to (i) qualify generally to do business or as a securities dealer in
any jurisdiction where it is not then so qualified or (ii) take any action
which would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.


 


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(i)      The
Company shall cooperate with the Holders of the Securities to facilitate the
timely preparation and delivery of certificates representing the Securities to
be sold pursuant to any Registration Statement free of any restrictive legends
(to the extent permitted by the Securities Act) and in such denominations and
registered in such names as the Holders may request a reasonable period of time
prior to sales of the Securities pursuant to such Registration Statement.


 


(j)      Upon the
occurrence of any event contemplated by paragraphs (ii) through (v) of Section
3(b) above during the period for which the Company is required to maintain an
effective Registration Statement, the Company shall promptly prepare and file a
post-effective amendment to the Registration Statement or a supplement to the
related prospectus and any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of Securities, the
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein (in the case of any prospectus, in light of the circumstances
under which they were made) not misleading. 
If the Company notifies the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Initial Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus, and the
period of effectiveness of the Shelf Registration Statement provided for in
Section 2(b) above and the Exchange Offer Registration Statement provided for
in Section 1 above shall each be extended by the number of days from and
including the date of the giving of such notice to and including the date when
the Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer shall have received such amended or supplemented
prospectus pursuant to this Section 3(j). 
Each Holder receiving a suspension notice shall either (i) destroy any
prospectuses, other than permanent file copies, then in such Holder’s
possession which have been replaced by the Company with more recently dated
prospectuses or (ii) deliver to the Company (at the Company’s expense) all
copies, other than permanent file copies, then in such Holder’s possession of
the prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of the suspension notice.


 


(k)     Not later
than the effective date of the applicable Registration Statement, the Company
will provide a CUSIP number for the Initial Securities, the Exchange Securities
or the Private Exchange Securities, as the case may be, and provide the
applicable trustee with printed certificates for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case may be, in
a form eligible for deposit with The Depository Trust Company.


 


(l)      The
Company will comply with all rules and regulations of the Commission to the
extent and so long as they are applicable to the Registered Exchange Offer or
the Shelf Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement (which need not be audited) satisfying
the provisions of Section 11(a) of the Securities Act, no later than 45 days
after the end of a 12-month period (or 90 days, if such period is a fiscal
year) beginning with the first month of the Company’s first fiscal quarter
commencing after the effective date of the Registration Statement, which
statement shall cover such 12-month period.


 


(m)    The
Company shall cause the Indenture and, to the extent required by the Securities
Act, the Mortgages (as such term is defined in the Purchase Agreement) to be
qualified under the Trust Indenture Act of 1939, as amended, in a timely manner
and containing such changes, if any, as shall be necessary for such
qualification.  In the event that such
qualification would require the appointment of a new trustee under the
Indenture or, as required by the Securities Act, the Mortgages, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture or the Mortgages.


 


(n)     The
Company may require each Holder of Securities to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such information regarding the
Holder and the distribution of the Securities as the Company may from time to
time reasonably require for inclusion in the Shelf Registration Statement, and
the Company may exclude from such registration the Securities of any Holder
that unreasonably fails to furnish such information within a reasonable time
after receiving such request.


 


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(o)     In the
case of any Shelf Registration, the Company shall enter into such customary
agreements (including, if requested, an underwriting agreement in customary
form) and take all such other action, if any, as any Holder of the Securities
shall reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration.


 


(p)     In the
case of any Shelf Registration, the Company shall (i) make reasonably available
for inspection by the Holders of the Securities, any underwriter participating
in any disposition pursuant to the Shelf Registration Statement and any
attorney, accountant or other agent retained by the Holders of the Securities
or any such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the Company’s
officers, directors, employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders of the Securities or any such
underwriter, attorney, accountant or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable such
persons, to conduct a reasonable investigation within the meaning of Section 11
of the Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial Purchasers
by you and on behalf of the other parties, by one counsel designated by and on
behalf of such other parties as described in Section 4 hereof; provided,
however, that any non-public information shall be kept confidential by the
Holders or any underwriter, attorney, accountant or agent, unless such
disclosure is required by law or becomes available to the public generally
through a third party without an accompanying obligation of confidentiality other
than as a result of a disclosure of such information by any such Holder,
underwriter, attorney, accountant or agent.


 


(q)     In the
case of any Shelf Registration, the Company, if requested by any Holder of
Securities covered thereby, shall cause (i) its counsel (which may be in-house
counsel) to deliver an opinion and updates thereof relating to the Securities
in customary form addressed to such Holders and the managing underwriters, if
any, thereof and dated, in the case of the initial opinion, the effective date
of such Shelf Registration Statement (it being agreed that the matters to be
covered by such opinion shall include, without limitation, the due
incorporation and good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact business as
foreign corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 3(o) hereof; the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities and the Collateral Bonds; the
absence of material legal or governmental proceedings involving the Company and
its subsidiaries; the absence of governmental approvals required to be obtained
in connection with the Shelf Registration Statement, the offering and sale of
the applicable Securities and the issuance and delivery of the Collateral
Bonds, or any agreement of the type referred to in Section 3(o) hereof; the
compliance as to form of such Shelf Registration Statement and any documents
incorporated by reference therein and of the Indenture and the Mortgages with
the requirements of the Securities Act and the Trust Indenture Act,
respectively; and, as of the date of the opinion and as of the effective date
of the Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from such Shelf Registration Statement
and the prospectus included therein, as then amended or supplemented, and from
any documents incorporated by reference therein of an untrue statement of a
material fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (in
the case of any such documents, in the light of the circumstances existing at
the time that such documents were filed with the Commission under the Exchange
Act); (ii) its officers to execute and deliver all customary documents and
certificates and updates thereof reasonably requested by any underwriters of
the applicable Securities and (iii) its independent public registered
accounting firm to provide to the selling Holders of the applicable Securities
and any underwriter therefor a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in connection with
primary underwritten offerings, subject to receipt of appropriate documentation
as contemplated, and only if permitted, by Statement of Auditing Standards No.
72.


 


(r)      In the
case of the Registered Exchange Offer, if reasonably requested by any Initial
Purchaser or any known Participating Broker-Dealer, the Company shall cause (i)
its counsel to deliver to such Initial Purchaser or such Participating
Broker-Dealer signed opinions in the forms set forth in Sections 6(c) and (d)
of the Purchase Agreement with such changes as are customary in connection with
the preparation of a


 


8





















 


Registration Statement and (ii) its independent public accountants to
deliver to such Initial Purchaser or such Participating Broker-Dealer a comfort
letter, in customary form, meeting the requirements as to the substance thereof
as set forth in Section 6(a) of the Purchase Agreement, with appropriate date
changes.


 


(s)     If a
Registered Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Initial Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the Exchange Securities or
the Private Exchange Securities, as the case may be, the Company shall mark, or
caused to be marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall the Initial
Securities be marked as paid or otherwise satisfied.


 


(t)      The
Company will use its commercially reasonable efforts to (a) if the Initial
Securities have been rated prior to the initial sale of such Initial
Securities, confirm such ratings will apply to the Securities covered by a
Registration Statement, or (b) if the Initial Securities were not previously
rated, cause the Securities covered by a Registration Statement to be rated
with up to two appropriate rating agencies, if so requested by Holders of a
majority in aggregate principal amount of Securities covered by such
Registration Statement, or by the managing underwriters, if any, in the case of
a Shelf Registration for an underwritten offering.


 


(u)     In the
event that any broker-dealer registered under the Exchange Act shall underwrite
any Securities or participate as a member of an underwriting syndicate or
selling group or “assist in the distribution” (within the meaning of the
Conduct Rules (the “Rules”) of the National Association of Securities Dealers,
Inc. (“NASD”)) thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company will assist such broker-dealer in complying
with the requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a “qualified
independent underwriter” (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and, if any
portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (ii) indemnifying any such qualified
independent underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules.


 


(v)     The
Company shall use its commercially reasonable efforts to take all other steps
necessary to effect the registration of the Securities covered by a Registration
Statement contemplated hereby.


 


4.     Registration Expenses. 
The Company shall bear all fees and expenses incurred in connection with
the performance of its obligations under Sections 1 through 3 hereof  and shall reimburse the Initial Purchasers and
the Holders of Transfer Restricted Securities who are tendering Initial
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the “Plan of Distribution” contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as
applicable, for the reasonable fees and expenses, if any, of not more than one
counsel, who shall be Dewey Ballantine LLP unless another firm shall be chosen
by the Holders of a majority in principal amount of the Initial Securities
covered thereby, whether or not the Registered Exchange Offer or a Shelf
Registration is filed or becomes effective.


 


5.     Indemnification.  (a)  The Company agrees to indemnify and hold
harmless each Holder of the Securities, any Participating Broker-Dealer and
each person, if any, who controls such Holder or such Participating
Broker-Dealer within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (each Holder, any Participating Broker-Dealer and such
controlling persons are referred to collectively as the “Indemnified Parties”)
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of,


 


9





















 


or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein (in the case of any prospectus, in light of the
circumstances under which they were made) not misleading, and shall reimburse,
as incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of
any Holder or Participating Broker-Dealer from whom the person asserting any
such losses, claims, damages or liabilities purchased the Securities concerned,
to the extent that a prospectus relating to such Securities was required to be
delivered by such Holder or Participating Broker-Dealer under the Securities
Act in connection with such purchase and any such loss, claim, damage or
liability of such Holder or Participating Broker-Dealer results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the final
prospectus if the Company had previously furnished copies thereof to such
Holder or Participating Broker-Dealer; provided further, however, that this
indemnity agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party. 
The Company shall also indemnify underwriters, their officers and
directors and each person who controls such underwriters within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as provided above with respect to the indemnification of the Holders of the
Securities if requested by such Holders in the case of a Shelf Registration for
an underwritten offering; provided, to the extent such Holders so request
indemnification for the underwriters, that each underwriter agrees to
indemnify, severally and not jointly, the Company, its directors and officers
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as provided in Section (b) below with respect to written information pertaining
to such underwriter and furnished to the Company by or on behalf of such
underwriter specifically for inclusion in such Shelf Registration Statement or
prospectus.


 


(b)     Each Holder of the Securities, severally
and not jointly, will indemnify and hold harmless the Company and each person,
if any, who controls the Company within the meaning of Section 15 the
Securities Act or Section 20 of the Exchange Act from and against any losses,
claims, damages or liabilities or any actions in respect thereof, to which the
Company or any such controlling person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration, or arise out of or are
based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein (in
the case of any prospectus, in light of the circumstances under which they were
made) not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such controlling person
in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. 
This indemnity agreement will be in addition to any liability which such
Holder may otherwise have to the Company or any of its controlling persons.


 


(c)     Promptly after receipt by an indemnified
party under this Section 5 of notice of the commencement of any action or
proceeding (including a governmental investigation), such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve the
indemnifying party from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced by such
failure; and provided further that the failure to notify the indemnifying party
shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection 
(a) or (b) above.  In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of


 


10





















 


the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof.  No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action 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 (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action, and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.


 


(d)     If the indemnification provided for in this
Section 5 is unavailable or insufficient to hold harmless an indemnified party
under subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party on the other from the exchange
of the Securities, pursuant to the Registered Exchange Offer, or (ii) if the
allocation provided by the foregoing clause (i) 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
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. 
The relative fault of the parties 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 on the one hand or such Holder
or such other indemnified party, as the case may be, on the other, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. 
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection
(d).  Notwithstanding any other provision
of this Section 5(d), the Holders of the Securities shall not be required to
contribute any amount in excess of the amount by which the net proceeds
received by such Holders from the sale of the Securities pursuant to a
Registration Statement exceeds the amount of damages which such Holders have 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.  For purposes of this paragraph (d), each
person, if any, who controls such indemnified party within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution
as such indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall have the
same rights to contribution as the Company.


 


(e)     The agreements contained in this Section 5
shall survive the sale of the Securities pursuant to a Registration Statement
and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.


 


6.     Additional Interest Under Certain Circumstances.  (a)  Additional interest (the “Additional Interest”)
with respect to the Initial Securities shall be assessed as follows if any of
the following events occur (each such event in clauses (i) through (iii) below
a “Registration Default”):


 


(i)            If
on or prior to the Exchange Offer Filing Deadline, the Exchange Offer
Registration Statement has not been filed with the Commission;


 


(ii)           If
on or prior to the Shelf Registration Filing Deadline, a Shelf Registration
Statement has not been filed with the Commission;


 


11





















 


(iii)          If
on or prior to the Exchange Offer Consummation Deadline, the Registered
Exchange Offer is not consummated;


 


(iv)          If
on or prior to 90 days following the Shelf Registration Filing Deadline (such
day being the “Shelf Registration Effectiveness Deadline”) in the event a Shelf
Registration is required in lieu of the Registered Exchange Offer pursuant to
Section 2 hereof, the Shelf Registration Statement has not been declared
effective by the Commission; or


 


(v)           If
after either the Exchange Offer Registration Statement or the Shelf
Registration Statement is declared effective (A) such Registration Statement
thereafter ceases to be effective; or (B) such Registration Statement or the
related prospectus ceases to be usable (except as permitted in paragraph (b))
in connection with resales of Transfer Restricted Securities during any periods
after the Exchange Offer Effectiveness Deadline or Shelf Registration
Effectiveness Deadline, as the case may be, but prior to the consummation of
the Exchange Offer or the Shelf Registration Termination Date, as the case may
be, because either (1) any event occurs as a result of which the related
prospectus forming part of such Registration Statement would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or (2) it shall be necessary to amend such
Registration Statement or supplement the related prospectus, to comply with the
Securities Act or the Exchange Act or the respective rules thereunder.


 


Additional Interest shall accrue on the Initial
Securities over and above the interest set forth in the title of the Securities
from and including the date on which any such Registration Default shall occur
to but excluding the date on which all such Registration Defaults have been
cured, at a rate of 0.25% per annum (the “Additional Interest Rate”) for the
first 90-day period immediately following the occurrence of such Registration
Default.  The Additional Interest Rate
shall increase by an additional 0.25% per annum with respect to each subsequent
90-day period until all Registration Defaults have been cured, up to a maximum
Additional Interest Rate of 1.0% per annum.


 


(b)     A Registration Default referred to in
Section 6(a)( v)(B) hereof shall be deemed not to have occurred and be
continuing in relation to a Shelf Registration Statement or the related
prospectus if (i) such Registration Default has occurred solely as a result of
(x) the filing of a post-effective amendment to such Shelf Registration
Statement to incorporate annual audited financial information with respect to
the Company where such post-effective amendment is not yet effective and needs
to be declared effective to permit Holders to use the related prospectus or (y)
other material events, with respect to the Company that would need to be
described in such Shelf Registration Statement or the related prospectus and
(ii) in the case of clause (y), the Company is proceeding promptly and in good
faith to amend or supplement such Shelf Registration Statement and related
prospectus to describe such events; provided, however, that in any case if such
Registration Default occurs for a continuous period in excess of 60 days,
Additional Interest shall be payable in accordance with the above paragraph
from the day such Registration Default occurs until such Registration Default
is cured.


 


(c)     Any amounts of Additional Interest due pursuant
to clause (i), (ii), (iii), (iv) or (v) of Section 6(a) above will be payable
in cash on the regular interest payment dates with respect to the Initial
Securities. The amount of Additional Interest will be determined by multiplying
the Additional Interest rate by the principal amount of the Initial Securities,
multiplied by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months), and the denominator
of which is 360.


 


(d)     “Transfer Restricted Securities” means each
Security until the earlier to occur of (i) the date on which such Transfer
Restricted Security has been exchanged by a person other than a broker-dealer
for a freely transferable Exchange Security in the Registered Exchange Offer,
(ii) following the exchange by a broker-dealer in the Registered Exchange Offer
of an Initial Security for an Exchange Security, the date on which such
Exchange Security is sold to a purchaser who receives from such broker-dealer
on or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Initial
Security has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration


 


12





















 


Statement or (iv) the date on which such Initial Security is distributed
to the public pursuant to Rule 144 under the Securities Act or is saleable
pursuant to Rule 144(k) under the Securities Act.


 


7.     Rules 144 and 144A. 
The Company shall use its commercially reasonable efforts to file the
reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time the Company is not required to file
such reports, it will, upon the request of any Holder of Initial Securities,
make publicly available other information so long as necessary to permit sales
of their securities pursuant to Rules 144 and 144A.  The Company covenants that it will take such
further action as any Holder of Initial Securities may reasonably request, all
to the extent required from time to time to enable such Holder to sell Initial
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)).  The Company will
provide a copy of this Agreement to prospective purchasers of Initial
Securities identified to the Company by the Initial Purchasers upon
request.  Upon the request of any Holder
of Initial Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.


 


8.     Underwritten Registrations. 
If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
(“Managing Underwriters”) will be selected by the Holders of a majority in
aggregate principal amount of such Transfer Restricted Securities to be
included in such offering and approved by the Company.


 


No person may participate in any underwritten
registration hereunder unless such person (i) agrees to sell such person’s
Transfer Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.


 


9.     Miscellaneous.


 


(a)     Amendments and Waivers.  The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.


 


(b)     Notices.  All notices and other communications provided
for or permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which guarantees
overnight delivery:


 


(1)   if to a Holder of the Securities, at the most
current address given by such Holder to the Company.


 


(2)   if to the Initial Purchasers;


 


Credit Suisse First
Boston LLC


Eleven Madison Avenue


New York, NY 10010-3629


Fax No.:  (212) 325-8278


Attention:  Transactions Advisory Group


 


Lehman Brothers Inc.


745 Seventh Avenue


New York, NY 10019


Fax No.:  (212) 526-0943


Attention:  Debt Capital Markets, Power Group


 


13





















 


with a copy to:


 


Dewey Ballantine LLP


1301 Avenue of the
Americas


New York, NY  10019


Fax No.:  (212) 259-6333


Attention:  Peter K. O’Brien


 


(3)   if to the Company, at its address as follows:


 


NorthWestern Corporation


125 S. Dakota Avenue


Sioux Falls, SD  57104-6403


Fax No.:  (605) 978-2840


Attention:  Treasurer


 


with a copy to:


 


Paul, Hastings, Janofsky
& Walker LLP


55 Second Street, 24th
Floor


San Francisco, CA  94105


Fax No.:  (415) 856-7147


Attention:  Thomas R. Pollock


 


All such notices and communications shall be deemed to
have been duly given:  at the time
delivered by hand, if personally delivered; three business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged
by recipient’s facsimile machine operator, if sent by facsimile transmission;
and on the day delivered, if sent by overnight air courier guaranteeing next
day delivery.


 


(c)     No Inconsistent Agreements. 
The Company has not, as of the date hereof, entered into, nor shall it,
on or after the date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders herein
or otherwise conflicts with the provisions hereof.


 


(d)     Successors and Assigns. 
This Agreement shall be binding upon the Company and its successors and
assigns.


 


(e)     Counterparts.  This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.


 


(f)      Headings.  The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.


 


(g)     Governing Law.  THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.


 


(h)     Severability.  If any
one or more of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be affected or impaired
thereby.


 


(i)      Securities Held by the Company.  Whenever the consent or approval of Holders
of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be


 


14





















 


affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.


 


(j)      Submission to Jurisdiction; Waiver of Immunities.  The Company hereby submits to the exclusive
jurisdiction of the federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.


 


15





















 


If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the several Initial Purchasers and the
Company in accordance with its terms.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  NorthWestern Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian B. Bird

  	
   

  
	
   

  	
   

  	
   Name: 
  Brian B. Bird

  
	
   

  	
   

  	
   Title: 
  Vice President and Chief Financial Officer

  



 


 


The foregoing Registration


Rights Agreement is
hereby confirmed


and accepted as of the
date first


above written.


 


CREDIT SUISSE FIRST
BOSTON LLC


LEHMAN BROTHERS INC.


Acting on behalf of
themselves


and as the
Representatives of


the several Initial
Purchasers


 


	
  By: CREDIT SUISSE FIRST
  BOSTON LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James T. Bartlett

  	
   

  
	
   

  	
   

  	
   Name: 
  James T. Bartlett

  
	
   

  	
   

  	
   Title: 
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: LEHMAN BROTHERS
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Konigsberg

  	
   

  
	
   

  	
   

  	
   Name: 
  Michael Konigsberg

  
	
   

  	
   

  	
   Title: 
  Managing Director

  



 


16





















 


SCHEDULE
A


 


Credit Suisse First
Boston LLC


Lehman Brothers Inc.


Deutsche Bank Securities
Inc.


 





















 


ANNEX A


 


Each broker-dealer that receives Exchange Securities
for its own account pursuant to the Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities.  The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an “underwriter” within the meaning of
the Securities Act.  This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities.  The Company has agreed that,
for a period of 180 days after the Expiration Date (as defined herein), it will
make this Prospectus available to any broker-dealer for use in connection with
any such resale.  See “Plan of
Distribution.”


 





















 


ANNEX B


 


Each broker-dealer that receives Exchange Securities
for its own account in exchange for Securities, where such Initial Securities
were acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities.  See “Plan of Distribution.”


 





















 


ANNEX C


 


PLAN OF DISTRIBUTION


 


Each broker-dealer that receives Exchange Securities
for its own account pursuant to the Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities.  This Prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Securities received in exchange for Initial
Securities where such Initial Securities were acquired as a result of
market-making activities or other trading activities.  The Company has agreed that, for a period of
180 days after the Expiration Date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any
such resale.  In addition, until                       ,
20  ,  all dealers effecting
transactions in the Exchange Securities may be required to deliver a
prospectus.(1)


 


The Company will not receive any proceeds from any
sale of Exchange Securities by broker-dealers. 
Exchange Securities received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Securities or a combination of
such methods of resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or negotiated prices.  Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker dealer or the
purchasers of any such Exchange Securities. 
Any broker-dealer that resells Exchange Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be deemed
to be an “underwriter” within the meaning of the Securities Act and any profit
on any such resale of Exchange Securities and any commission or concessions
received by any such persons may be deemed to be underwriting compensation
under the Securities Act.  The Letter of
Transmittal states that, by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an “underwriter” within the meaning of the Securities Act.


 


For a period of 180 days after the Expiration Date the
Company will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. 
The Company has agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the Holders of the Securities)
other than commissions or concessions of any brokers or dealers and will
indemnify the Holders of the Securities (including any broker-dealers) against
certain liabilities, including liabilities under the Securities Act.


 










(1)           In
addition, the legend required by Item 502(b) of Regulation S-K will appear on
the back cover page of the Exchange Offer prospectus.


 





















 


ANNEX D


 


o            CHECK
HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.


 


	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


If the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Securities. 
If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any resale
of such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act.