Exhibit 10.2(h)


 


SECURED SUPERPRIORITY DEBTOR IN POSSESSION


 


CREDIT AND GUARANTY AGREEMENT


 


DATED AS OF SEPTEMBER 19, 2003


 


 


AMONG


 


 


NORTHWESTERN CORPORATION

A DEBTOR AND DEBTOR IN POSSESSION,

AS BORROWER,


 


 


THE OTHER LOAN PARTIES

PARTY HERETO AS GUARANTORS,


 


 


THE LENDERS PARTY HERETO FROM TIME TO TIME,


 


 


AND


 


 


BANK ONE, NA

(with its main office in Chicago, Illinois),

AS INITIAL LENDER, AGENT AND LC ISSUER


 


 


BANC ONE CAPITAL MARKETS, INC.,

AS LEAD ARRANGER AND SOLE BOOK RUNNER


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II THE FACILITY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  The
  Facility

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.1.1

  	
  Revolving
  Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.1.2

  	
  Facility
  LCs

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.1.3

  	
  Non-Ratable Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.1.4

  	
  Term
  Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2

  	
  Ratable Loans; Risk
  Participation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3

  	
  Payment of the Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4

  	
  Minimum Amount of Each
  Advance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.5

  	
  Funding
  Account

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.6

  	
  Reliance Upon
  Authority; No Liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.7

  	
  Conversion
  and Continuation of Outstanding Advances

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.8

  	
  Telephonic Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.9

  	
  Notification
  of Advances, Interest Rates, Prepayments and Commitment Reductions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.10

  	
  Fees

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.11

  	
  Interest
  Rates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.12

  	
  Eurodollar
  Advances Post Default; Default Rates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.13

  	
  Interest
  Payment Dates; Interest and Fee Basis

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.14

  	
  Voluntary Prepayments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.15

  	
  Mandatory Prepayments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.16

  	
  Termination
  of the Facility; Reduction of Commitments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.17

  	
  Method
  of Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.18

  	
  Apportionment,
  Application, and Reversal of Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.19

  	
  Settlement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.20

  	
  Indemnity for Returned
  Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.21

  	
  Noteless
  Agreement; Evidence of Indebtedness

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.22

  	
  Lending Installations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.23

  	
  Non Receipt of Funds
  by the Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.24

  	
  Limitation of Interest

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.25

  	
  Priority and Liens

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.26

  	
  Security
  Interest in Facility LC Collateral Account

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.27

  	
  No Discharge; Survival
  of Claims

  	
   

  



 


1

















 


	
  ARTICLE
  III YIELD PROTECTION; TAXES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Yield
  Protection

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Changes in
  Capital Adequacy Regulations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  Availability of Types
  of Advances

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4

  	
  Funding Indemnification

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.5

  	
  Taxes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.6

  	
  Lender
  Statements; Survival of Indemnity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Closing
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2

  	
  Term Loan
  Commitment Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3

  	
  Each Credit Extension

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Existence and Standing

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.2

  	
  Authorization and Validity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.3

  	
  No Conflict; Government
  Consent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.4

  	
  Security Interest in
  Collateral

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.5

  	
  Financial Statements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.6

  	
  Material Adverse Change

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.7

  	
  Taxes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.8

  	
  Litigation and
  Contingent Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.9

  	
  Capitalization and
  Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.10

  	
  ERISA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.11

  	
  Accuracy of Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.12

  	
  Names; Prior Transactions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.13

  	
  Regulation
  U

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.14

  	
  Compliance With Laws

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.15

  	
  Ownership of Properties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.16

  	
  Plan Assets;
  Prohibited Transactions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.17

  	
  Environmental Matters

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.18

  	
  Investment Company Act

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.19

  	
  Public
  Utility Holding Company Act; State Utility Regulation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.20

  	
  Bank
  Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.21

  	
  Indebtedness

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.22

  	
  Affiliate Transactions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.23

  	
  Intellectual Property
  Rights

  	
   

  



 


2

















 


	
   

  	
  5.24

  	
  Insurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.25

  	
  Post Retirement Benefits

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.26

  	
  Common Enterprise

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.27

  	
  Reportable Transaction

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.28

  	
  Labor
  Disputes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.29

  	
  Orders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.30

  	
  No Default

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.31

  	
  Montana
  Megawatts I, LLC; Turbine Collateral

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.32

  	
  Borrowing Base Inventory

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.33

  	
  Principal Real Properties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Financial and
  Collateral Reporting

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Use
  of Proceeds

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.3

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.4

  	
  Conduct of Business

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.5

  	
  Taxes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.6

  	
  Payment
  of Indebtedness and Other Liabilities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.7

  	
  Insurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.8

  	
  Compliance with Laws

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.9

  	
  Maintenance
  of Properties and Intellectual Property Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.10

  	
  Inspection

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.11

  	
  Appraisals

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.12

  	
  Communications with
  Accountants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.13

  	
  Collateral
  Access Agreements and Real Estate Purchases

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.14

  	
  Control Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.15

  	
  Additional
  Collateral; Further Assurances

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.16

  	
  Dividends

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.17

  	
  Indebtedness

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.18

  	
  Capital Structure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.19

  	
  Merger

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.20

  	
  Sale
  of Assets

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.21

  	
  Investments and
  Acquisitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.22

  	
  Liens

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.23

  	
  Change
  of Corporate Name or Location; Change of Fiscal Year

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.24

  	
  Affiliate Transactions

  	
   

  



 


3

















 


	
   

  	
  6.25

  	
  Amendments to Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.26

  	
  Intentionally omitted

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.27

  	
  Financial Contracts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.28

  	
  Capital Expenditures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.29

  	
  Minimum
  EBITDAR

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.30

  	
  [Intentionally omitted.]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.31

  	
  Real Property Purchases

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.32

  	
  Sale
  of Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.33

  	
  Contingent Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.34

  	
  Chapter
  11 Claims

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.35

  	
  [Intentionally omitted]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.36

  	
  Bankruptcy
  Court

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.37

  	
  Operating
  Leases; Sale and Leaseback Transactions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.38

  	
  Prepayment of Indebtedness

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.39

  	
  Turbine Collateral

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.40

  	
  Rating

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.41

  	
  Certain Post-Closing
  Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII DEFAULTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII REMEDIES; WAIVERS AND AMENDMENTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Remedies

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.2

  	
  Waivers by Loan Parties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.3

  	
  Amendments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.4

  	
  Preservation of Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX
  GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Survival of Representations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.2

  	
  Governmental Regulation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.3

  	
  Headings

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.4

  	
  Entire
  Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.5

  	
  Several
  Obligations; Benefits of this Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.6

  	
  Expenses; Indemnification

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.7

  	
  Numbers of Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.8

  	
  Accounting

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.9

  	
  Severability of Provisions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.10

  	
  Nonliability of Lenders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.11

  	
  Confidentiality

  	
   

  



 


4

















 


	
   

  	
  9.12

  	
  Nonreliance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.13

  	
  Disclosure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X THE
  AGENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Appointment; Nature
  of Relationship

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2

  	
  Powers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.3

  	
  General
  Immunity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.4

  	
  No
  Responsibility for Credit Extensions, Recitals, etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.5

  	
  Action on
  Instructions of the Lenders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.6

  	
  Employment of Agents
  and Counsel

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.7

  	
  Reliance on Documents;
  Counsel

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.8

  	
  Agent’s
  Reimbursement and Indemnification

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.9

  	
  Notice
  of Default

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.10

  	
  Rights as a Lender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.11

  	
  Lender Credit Decision

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.12

  	
  Successor
  Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.13

  	
  Delegation to Affiliates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.14

  	
  Execution of Loan Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.15

  	
  Collateral Matters

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.16

  	
  Co-Agents,
  Documentation Agent, Syndication Agent, etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI
  SETOFF; RATABLE PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Setoff

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.2

  	
  Ratable
  Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Successors and Assigns

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.2

  	
  Participations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.3

  	
  Assignments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.4

  	
  Dissemination of
  Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.5

  	
  Tax
  Treatment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.6

  	
  Assignment by LC Issuer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII NOTICES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  Notices;
  Effectiveness; Electronic Communication

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.2

  	
  Change of Address, Etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XIV COUNTERPARTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV
  GUARANTY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.1

  	
  Guaranty

  	
   

  



 


5

















 


	
   

  	
  15.2

  	
  Guaranty of Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.3

  	
  No Discharge
  or Diminishment of Guaranty

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.4

  	
  Defenses
  Waived

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.5

  	
  Rights of Subrogation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.6

  	
  Reinstatement; Stay
  of Acceleration

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.7

  	
  Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.8

  	
  Termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.9

  	
  Taxes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.10

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.11

  	
  Contribution

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.12

  	
  Lending Installations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.13

  	
  Liability Cumulative

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVI CHOICE OF LAW; CONSENT TO
  JURISDICTION; WAIVER OF JURY TRIAL; CONFLICT WITH ORDERS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.1

  	
  CHOICE OF LAW

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.2

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.3

  	
  CONSENT TO JURISDICTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.4

  	
  CONFLICT WITH ORDERS

  	
   

  



 


6

















 


	
  Attachments

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commitment
  Schedule

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit
  A

  	
   

  	
  —

  	
   

  	
  Form
  of Borrowing Notice

  	
   

  
	
  Exhibit
  B

  	
   

  	
  —

  	
   

  	
  Form
  of Conversion/Continuation Notice

  	
   

  
	
  Exhibit
  C-1

  	
   

  	
  —

  	
   

  	
  Form
  of Revolving Note

  	
   

  
	
  Exhibit
  C-2

  	
   

  	
  —

  	
   

  	
  Form
  of Term Note

  	
   

  
	
  Exhibit
  D

  	
   

  	
  —

  	
   

  	
  Form
  of Compliance Certificate

  	
   

  
	
  Exhibit
  E

  	
   

  	
  —

  	
   

  	
  Form
  of Assignment Agreement

  	
   

  
	
  Exhibit
  F

  	
   

  	
  —

  	
   

  	
  Form
  of Borrowing Base Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  1(a)

  	
   

  	
  —

  	
   

  	
  Liens

  	
   

  
	
  Schedule
  1(b)

  	
   

  	
  —

  	
   

  	
  Pre-Petition
  Payments - Indebtedness

  	
   

  
	
  Schedule
  5.7

  	
   

  	
  —

  	
   

  	
  Taxes

  	
   

  
	
  Schedule
  5.9

  	
   

  	
  —

  	
   

  	
  Capitalization
  and Subsidiaries

  	
   

  
	
  Schedule
  5.12

  	
   

  	
  —

  	
   

  	
  Fictitious
  Names; Mergers; Acquisitions

  	
   

  
	
  Schedule
  5.15

  	
   

  	
  —

  	
   

  	
  Exceptions
  to Title

  	
   

  
	
  Schedule
  5.17

  	
   

  	
  —

  	
   

  	
  Environmental
  Matters

  	
   

  
	
  Schedule
  5.19

  	
   

  	
  —

  	
   

  	
  Restrictions
  on Incurrence of Indebtedness

  	
   

  
	
  Schedule
  5.21

  	
   

  	
  —

  	
   

  	
  Indebtedness

  	
   

  
	
  Schedule
  5.22

  	
   

  	
  —

  	
   

  	
  Affiliate
  Transactions

  	
   

  
	
  Schedule
  5.23

  	
   

  	
  —

  	
   

  	
  Intellectual
  Property

  	
   

  
	
  Schedule
  5.28

  	
   

  	
  —

  	
   

  	
  Labor
  Matters

  	
   

  
	
  Schedule
  5.32

  	
   

  	
  —

  	
   

  	
  Borrowing
  Base Inventory

  	
   

  
	
  Schedule
  5.33

  	
   

  	
  —

  	
   

  	
  Principal
  Real Properties

  	
   

  
	
  Schedule
  6.20

  	
   

  	
  —

  	
   

  	
  Asset
  Sales

  	
   

  
	
  Schedule
  6.21

  	
   

  	
  —

  	
   

  	
  Permitted
  Investments

  	
   

  



 


7

















 


SECURED SUPERPRIORITY DEBTOR IN POSSESSION

CREDIT AND GUARANTY AGREEMENT


 


This
Secured Superpriority Debtor in Possession Credit and Guaranty Agreement, dated
as of September 19, 2003, is among NorthWestern Corporation, a Delaware
corporation, as debtor and debtor in possession under chapter 11 of the
Bankruptcy Code (together with its successors and assigns, the “Borrower”),
the other Loan Parties party hereto as Guarantors, the Lenders and Bank One,
NA, a national banking association having its principal office in Chicago,
Illinois, as LC Issuer, Initial Lender and as Agent.


 


RECITALS


 


On
September 14, 2003 (the “Petition Date”), the Borrower filed a voluntary
petition with the Bankruptcy Court initiating the Case and has continued in the
possession of its assets and in the management of its business pursuant to
Sections 1107 and 1108 of the Bankruptcy Code.


 


The
Borrower has applied to the Lenders for (i) a revolving credit and letter of
credit facility in an aggregate principal amount not to exceed $100,000,000 and
(ii) term loans in an aggregate principal amount not to exceed
$390,000,000.  All of the Borrower’s
obligations hereunder and under the other Loan Documents are to be guaranteed
by the Guarantors.


 


The
proceeds of the Revolving Loans will be used solely for working capital, to
make certain Permitted Pre-Petition Payments and other general corporate
purposes of the Borrower and the other Loan Parties (to the extent permitted by
this Agreement).  The proceeds of the
Term Loans, if made available, will be used by the Borrower solely to repay the
CSFB Loan in full.


 


To
provide guarantees and security for the repayment of the Loans, the
reimbursement of any draft drawn under a Letter of Credit and the payment of
the other obligations of the Borrower and the Guarantors hereunder and under
the other Loan Documents, the Borrower and the Guarantors (as applicable) will
provide to the Agent, the LC Issuer and the Lenders the following (each as more
fully described herein, in the Interim Order and the Final Order (when
entered), and in the other Loan Documents):


 


(a)                                  a guaranty from each of the Guarantors of the
due and punctual payment and performance of the obligations of the Borrower
hereunder and under the other Loan Documents;


 


(b)                                 an allowed administrative expense claim in
the Case pursuant to Section 364(c)(1) of the Bankruptcy Code having priority
over all administrative expenses of the kind specified in Sections 503(b) and
507(b) of the Bankruptcy Code and any and all expenses and claims of the
Borrower, whether heretofore or hereafter incurred, including but not limited
to the kind specified in Sections 105, 326, 328, 330, 331, 503(b), 506(c),
507(a), 507(b), 1112 or 1114 of the Bankruptcy Code;


 


(c)                                  a perfected first priority Lien, pursuant to
Section 364(c)(2) of the Bankruptcy Code, upon all unencumbered property of the
Borrower (excluding the Borrower’s rights in respect of avoidance actions and
the proceeds thereof under the Bankruptcy Code) and on all cash and cash
equivalents, provided  that following the Termination Date,
amounts in any account maintained with the Agent, the LC Issuer or any Lender
(including the Facility LC Collateral Account) shall not be subject to the
Carve-Out hereinafter referred to;


 


1

















 


(d)                                 a perfected best available Lien upon
substantially all property of the Guarantors, including cash and cash equivalents,
including, without limitation, a first priority security interest on (i) 100%
of any Capital Stock owned by any Guarantor and (ii) the Turbine Collateral;
and


 


(e)                                  a perfected Lien, pursuant to Section
364(c)(3) of the Bankruptcy Code, upon all property of the Borrower that is
subject to valid and perfected Liens in existence on the Petition Date or that
is subject to valid Liens in existence on the Petition Date that are perfected
subsequent to the Petition Date as permitted by Section 546(b) of the
Bankruptcy Code or that is subject to Permitted Liens, junior to such valid and
perfected Liens.


 


In
addition, without limiting the Liens described in clauses (b), (c) and (e)
above, on and after the Term Loan Commitment Effective Date the obligations of
the Borrower to repay the Obligations will be secured by a perfected Lien,
pursuant to Section 364(d)(1) of the Bankruptcy Code, upon all property
(including after-acquired property) of the Borrower that secures (x) the
Montana Bonds (the “Montana Collateral”) and (y) the South Dakota Bonds
(the “South Dakota Collateral”), which Lien shall have the same priority
vis a vis each other Lien on the same collateral as the Lien which secured the
Montana Bonds and the South Dakota Bonds, respectively, immediately prior to
the repayment in full of the CSFB Loans on the Term Loan Commitment Effective
Date and to any Liens granted after the Petition Date to provide adequate
protection in respect thereof; provided  that (i) the proceeds of
the Montana Collateral shall only be available to the Secured Parties in
respect of Obligations not to exceed the Montana Maximum Amount and (ii) the
proceeds of the South Dakota Collateral shall only be available to the Secured
Parties in respect of Obligations not to exceed the South Dakota Maximum Amount
(the limitation contained in the foregoing proviso will only apply to the
proceeds of the collateral secured by the Liens described in this paragraph).


 


All
of the claims and the Liens granted hereunder in the Case to the Agent, the LC
Issuer and the Lenders will be subject to the Carve-Out to the extent provided
in Section 2.25.


 


NOW
THEREFORE, in consideration of these premises and the terms and conditions set
forth in this Agreement, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:


 


ARTICLE
I


 


DEFINITIONS


 


As
used in this Agreement:


 


“Account”
shall have the meaning given to such term in the Security Agreement.


 


“Account
Debtor” means any Person obligated on an Account.


 


“Acquisition”
means any transaction, or any series of related transactions, consummated on or
after the Closing Date, by which the Borrower or any Subsidiary (other than
Excluded Subsidiaries) (a) acquires any going business or all or substantially
all of the assets of any Person, whether through purchase of assets, merger or
otherwise or (b) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the Capital Stock of a Person which has ordinary voting
power for the election of directors or other similar management personnel of a
Person (other than Capital Stock having such power only by reason of the
happening of a contingency) or a majority of the outstanding Capital Stock of a
Person.


 


2

















 


“Advance”
means a borrowing hereunder (a) made by some or all of the Lenders on the same
Borrowing Date or (b) converted or continued by the Lenders on the same date of
conversion or continuation, consisting, in either case, of the aggregate amount
of the several Loans of the same Type and, in the case of Eurodollar Loans, for
the same Interest Period.  The term
Advance shall include Non-Ratable Loans unless otherwise expressly provided.


 


“Affiliate”
of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person.  A Person shall be deemed to control another
Person if the controlling Person owns 10% or more of any class of the voting
Capital Stock of the controlled Person or possesses, directly or indirectly,
the power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of Capital Stock, by contract or
otherwise.


 


“Agent”
means Bank One in its capacity as contractual representative of the Lenders
pursuant to Article X, and not in its individual capacity as a Lender,
and any successor Agent appointed pursuant to Article X.


 


“Aggregate
Commitment” means the aggregate of the Commitments of all the Lenders, as
increased or reduced from time to time in accordance with the terms hereof,
which Aggregate Commitment shall initially be in the amount of $100,000,000.


 


“Aggregate
Credit Exposure” means, at any time, the aggregate of the Credit Exposure
of all the Lenders.


 


“Aggregate
Revolving Exposure” means, at any time, the aggregate Revolving Exposure of
all the Lenders.


 


“Agreement”
means this Secured Superpriority Debtor in Possession Credit and Guaranty
Agreement, as it may be amended or modified and in effect from time to time.


 


“Alternate
Base Rate” means, for any day, a rate of interest per annum equal to the
higher of (a) the Prime Rate for such day and (b) the sum of the Federal Funds
Effective Rate for such day plus 1/2% per annum.


 


“Applicable
Margin” means (a) (i) with respect to Revolving Loan Advances that are
Eurodollar Advances, 3.00% per annum and (ii) with respect to Revolving Loan
Advances that are Floating Rate Advances, 1.00% per annum, and (b) (i) with
respect to Term Loans that are Eurodollar Advances, 3.50% per annum and (ii)
with respect to Term Loans that are Floating Rate Advances, 1.50% per annum.


 


“Appraised
Assets FMV” means the fair market value of the assets of the Loan Parties
as determined by an appraisal to be conducted by an appraiser satisfactory to
the Required Lenders, such appraisal to be satisfactory in form and substance
in all respects to the Agent and the Required Lenders.


 


“Approved
Fund” means any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


“Arranger”
means Banc One Capital Markets, Inc., a Delaware corporation, and its successors,
in its capacity as Lead Arranger and Sole Book Runner.


 


“Article”
means an article of this Agreement unless another document is specifically
referenced.


 


“Assignment
Agreement” is defined in Section 12.3(a).


 


3

















 


“Authorized
Officer” means any of the Chief Executive Officer, Chief Financial Officer,
Chief Restructuring Officer, Treasurer or Chief Accountant of the Borrower (or
such other officer of the Borrower designated by the Borrower and acceptable to
the Agent), acting singly.


 


“Availability”
means, at any time, an amount equal to the lesser of (a) the Revolving
Commitment and (b) the Borrowing Base, in each case minus the Aggregate Revolving
Exposure.


 


“Available
Revolving Commitment” means, at any time, the Revolving Commitment then in
effect minus the Aggregate Revolving Exposure at such time.


 


“Bank
One” means Bank One, NA, a national banking association, in its individual
capacity, and its successors.


 


“Banking
Services” means each and any of the following bank services provided to any
Loan Party by Bank One or any of its Affiliates: (a) commercial credit cards,
(b) stored value cards and (c) treasury management services (including, without
limitation, controlled disbursement, automated clearinghouse transactions,
return items, overdrafts and interstate depository network services).


 


“Banking
Services Obligations” of the Loan Parties means any and all obligations of
the Loan Parties, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor) in connection with Banking
Services.


 


“Banking
Services Reserves” means all Reserves which the Agent from time to time
establishes in its Permitted Discretion for Banking Services then provided or
outstanding.


 


“Bankruptcy
Code” means Title 11 of the U.S. Code (11 U.S.C. § 101 et  seq.)
as amended, reformed, or otherwise modified from time to time, and any rule or
regulation issued thereunder.


 


“Bankruptcy
Court” means the United States Bankruptcy Court for the District of
Delaware or any other court having jurisdiction over the Case from time to
time.


 


“Blue
Dot” means Blue Dot Services Inc., a Delaware corporation.


 


“Borrower”
is defined in the preamble to this Agreement.


 


“Borrowing
Base” means (a) at any time prior to the occurrence of the Term Loan
Commitment Effective Date, the sum of (i) 85% of the Borrower’s cumulative
Eligible Billed Accounts at such time, plus
(ii) 70% of the Borrower’s cumulative Eligible Unbilled Accounts at such time, plus (iii) the lesser of (A) $35
million and (B) 80% of the Borrower’s Eligible Stored Gas Inventory, valued at
the lower of cost or market, determined on a first in first out basis, plus (iv) 80% of the Borrower’s
Eligible Working Gas and Fuel Inventory, valued at the lower of cost or market,
determined on a first in first out basis, plus
(v) the lesser of (X) $10 million and (Y) 30% of the Borrower’s Eligible
Materials and Supplies Inventory, valued at the lower of cost or market,
determined on a first in first out basis, plus
(vi) 75%  of the Net Orderly
Liquidation Value of Eligible Turbine Collateral,  less
(vii) Reserves; and (b) at any time on or after the occurrence of the Term Loan
Commitment Effective Date, (i) 55% of the Borrower’s aggregate Appraised Assets
FMV, less (ii) Reserves, less (iii) the outstanding amount of
the Borrower’s and its Subsidiaries’ (other than Excluded Subsidiaries)
outstanding secured Indebtedness (pre-petition or post-petition) other than
Indebtedness incurred pursuant to this Agreement.  The Agent may, in its Permitted Discretion, modify one or more of
the elements used in computing the Borrowing Base and/or reduce the


 


4

















 


advance rates stated herein.  If
the Term Loan Commitment Effective Date does not occur on or before October 31,
2003, the Borrowing Base shall be determined by reference to clause (a) above.


 


“Borrowing
Base Certificate” means a certificate, signed by an Authorized Officer of
the Borrower, in the form of Exhibit F or another form which is
acceptable to the Agent in its sole discretion.


 


“Borrowing
Base Inventory” is defined in Section 6.1(h)(ii).


 


“Borrowing
Date” means a date on which an Advance or a Loan is made hereunder.


 


“Borrowing
Notice” is defined in Section 2.1.1(b).


 


“Business
Day” means (a) with respect to any borrowing, payment or rate selection of
Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago and New York City for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in U.S. dollars are
carried on in the London interbank market and (b) for all other purposes, a day
(other than a Saturday or Sunday) on which banks generally are open in Chicago
for the conduct of substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.


 


“Capital
Expenditures” means, without duplication, any expenditure or commitment to
expend money for any purchase or other acquisition of any asset which would be
classified as a fixed or capital asset on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with GAAP.


 


“Capital
Stock” means any and all corporate stock, units, shares, partnership
interests, membership interests, equity interests, rights, securities, or other
equivalent evidences of ownership (howsoever designated) issued by any Person,
and any and all warrants or options to purchase (or any similar right) any of
the foregoing.


 


“Capitalized
Lease” of a Person means any lease of Property by such Person as lessee
which would be capitalized on a balance sheet of such Person prepared in
accordance with GAAP.


 


“Capitalized
Lease Obligations” of a Person means the aggregate amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.


 


“Carve-Out”
means, with respect to the Case, (i) the unpaid fees of the clerk of the
Bankruptcy Court and the United States Trustee pursuant to 28 U.S.C. § 1930,
(ii) the unpaid fees and expenses of professionals incurred by the Borrower and
any statutory committees appointed in the Case disclosed to the Agent prior to
the occurrence of a Default or an Unmatured Default and allowed by an order of
the Bankruptcy Court, whether paid prior to or after the occurrence of a
Default or an Unmatured Default and (iii) payment of any unpaid fees and
expenses of professionals incurred by the Borrower and any statutory committees
appointed in the Case and disclosed to the Agent after the occurrence of a
Default or an Unmatured Default and allowed by an order of the Bankruptcy Court
not to exceed $5,000,000 in the aggregate, in each case exclusive of any
retainers received by such professionals in connection with the Case.


 


“Case”
means the bankruptcy case commenced by the voluntary petition for relief under
chapter 11 of the Bankruptcy Code filed by the Borrower in the Bankruptcy Court
on September 14, 2003.


 


5

















 


“Cash
Equivalent Investments” means (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit and
eurodollar time deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits of any Lender and certificates of
deposit with maturities of one year or less from the date of acquisition and
overnight bank deposits of any other commercial bank having capital and surplus
in excess of $500,000,000, (c) commercial paper of any issuer rated at least
A-2 by S&P or P-2 by Moody’s, (d) additional money market investments with
maturities of one year or less from the date of acquisition rated at least A1
or AA by S&P or P-1 or Aa by Moody’s and (e) tax-exempt debt obligations of
any State of the United States or of any county or other municipal government
subdivision of any State of the United States with maturities of one year or
less from the date of acquisition rated at the highest investment grade rating
by S&P or by Moody’s, or publicly traded or open-end bond funds that invest
exclusively in such tax-exempt debt obligations.


 


“Change
in Control” means the occurrence of any of the following: (a) any Person or
“group” (within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934) (i) shall have acquired beneficial ownership of 40% or
more of the aggregate outstanding classes of Capital Stock having voting power
in the election of directors of the Borrower or (ii) shall obtain the power
(whether or not exercised) to elect a majority of the Borrower’s directors; (b)
a majority of the persons who comprised the Board of Directors of the Borrower
on the date hereof shall be replaced, unless such replacement shall have been
approved by at least two-thirds of the Board of Directors of the Borrower then
still in office who either were members of such Board of Directors on the date
hereof or whose election as a member of such Board of Directors was previously
so approved; or (c) the Borrower shall be liquidated or dissolved.


 


“Closing
Date” means the date of this Agreement.


 


“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time, and any rule or regulation issued thereunder.


 


“Collateral”
means any and all Property covered by the Collateral Documents and any and all
other Property of any Loan Party, now existing or hereafter acquired, that may
at any time be or become subject to a security interest or Lien in favor of the
Agent, on behalf of itself and the other Secured Parties, to secure the Secured
Obligations.


 


“Collateral
Access Agreement” means any landlord waiver or other agreement, in form and
substance satisfactory to the Agent, between the Agent and any third party
(including any bailee, consignee, customs broker, or other similar Person) in
possession of any Collateral or any landlord of any Loan Party for any real
Property where any Collateral is located, as such landlord waiver or other
agreement may be amended, restated, or otherwise modified from time to time.


 


“Collateral
Documents” means, collectively, the Security Agreement, the Mortgages, any
Deposit Account Control Agreements, any securities account control agreements
and any other documents granting a Lien upon the Collateral as security for
payment of the Secured Obligations.


 


“Collateral
Shortfall Amount” is defined in Section 2.1.2(l).


 


“Commitment”
means, for each Lender, the obligation of such Lender to make Loans to, and
participate in Facility LCs issued upon the application of, the Borrower in an
aggregate amount not exceeding the amount set forth in the applicable column of
the Commitment Schedule or as set forth in any Assignment Agreement that
has become effective pursuant to Section 12.3(c), as such amount may be
modified from time to time pursuant to the terms hereof, including with respect
to the occurrence of the Term Loan Commitment Effective Date.


 


6

















 


“Commitment
Schedule” means the Schedule attached hereto identified as such.


 


“Compliance
Certificate” is defined in Section 6.1(e).


 


“Consolidated
Capital Expenditures” means, with reference to any period, the Capital
Expenditures of the Borrower and its Subsidiaries calculated on a consolidated
basis for such period.


 


“Consolidated
EBITDAR” means Consolidated Net Income plus,
to the extent deducted from revenues in determining Consolidated Net Income,
(a) Consolidated Interest Expense, (b) expense for taxes paid or accrued net of
tax refunds received during the covenant computation period or expected to be
received within sixty days thereafter, (c) depreciation, (d) amortization and
other non-cash charges, (e) extraordinary losses (as determined in accordance
with GAAP) incurred other than in the ordinary course of business and (f) fees,
expenses and non-recurring restructuring charges related to the Case and this
Agreement, minus, to the
extent included in Consolidated Net Income, extraordinary gains (as determined
in accordance with GAAP) realized other than in the ordinary course of business,
all calculated for the Borrower and its Subsidiaries on a consolidated basis.


 


“Consolidated
Interest Expense” means, with reference to any period, the interest expense
of the Borrower and its Subsidiaries calculated on a consolidated basis for
such period.


 


“Consolidated
Net Income” means, with reference to any period, the net income (or loss)
of the Borrower and its Subsidiaries calculated on a consolidated basis for
such period.


 


“Contingent
Obligation” of a Person means any agreement, undertaking or arrangement by
which such Person assumes, guarantees, endorses, contingently agrees to
purchase or provide funds for the payment of, or otherwise becomes or is
contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial
condition of any other Person, or otherwise assures any creditor of such other
Person against loss, including, without limitation, any comfort letter,
operating agreement, take or pay contract or the obligations of any such Person
as general partner of a partnership with respect to the liabilities of the
partnership.


 


“Controlled
Group” means all members of a controlled group of corporations or other
business entities and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower or any Subsidiary, are
treated as a single employer under Section 414 of the Code.


 


“Conversion/Continuation
Notice” is defined in Section 2.7.


 


“Copyrights”
shall have the meaning given to such term in the Security Agreement.


 


“Credit
Exposure” means, as to any Lender at any time, the sum of (a) such Lender’s
Revolving Exposure at such time plus
(b) an amount equal to the aggregate principal amount of its Term Loans
outstanding at such time.


 


“Credit
Extension” means the making of an Advance or the issuance of a Facility LC
hereunder.


 


“Credit
Extension Date” means the Borrowing Date for an Advance or the issuance
date for a Facility LC.


 


“CSFB
Credit Agreement” means that certain Credit Agreement, dated as of December
17, 2002, among the Borrower, the several lenders from time to time party
thereto, and Credit Suisse First Boston,


 


7

















 


as Administrative Agent, Lead Arranger, and
Sole Book Runner, as amended, supplemented, or otherwise modified from time to
time.


 


“CSFB
Loan” means, at any date of determination, all outstanding principal,
interest, fees and other obligations of the Borrower and its Subsidiaries under
the CSFB Credit Agreement and related loan documents.


 


“Default”
means an event described in Article VII.


 


“Deposit
Account Control Agreement” means an agreement, in form and substance
satisfactory to the Agent, among any Loan Party, a banking institution holding
such Loan Party’s funds, and the Agent with respect to collection and control
of all deposits and balances held in a deposit account maintained by any Loan
Party with such banking institution.


 


“Document”
shall have the meaning given to such term in the Security Agreement.


 


“Domestic
Subsidiary” means any Subsidiary which is organized under the laws of the
U.S. or any state of the U.S.


 


“Easement”
is defined in Section 5.33.


 


“Effective
Date” means the date that the conditions precedent set forth in Sections
4.1 and 4.3 are satisfied.


 


“Eligible
Billed Accounts” means, at any time, the Accounts of the Borrower actually
billed to customers which the Agent determines in its Permitted Discretion are
eligible as the basis for Credit Extensions hereunder.  Without limiting the Agent’s discretion
provided herein, Eligible Billed Accounts shall not include any Account:


 


(a)                                  which is not subject to a first priority
perfected security interest in favor of the Agent;


 


(b)                                 which is subject to any Lien other than a
Lien in favor of the Agent, or the proceeds of which are required to be
segregated for the benefit of any Person other than the Agent;


 


(c)                                  with respect to which the scheduled due date
is more than thirty days after the original billing date, more than ninety days
have elapsed since the date of the original bill therefor or which is more than
sixty days past the due date for payment;


 


(d)                                 which is owing by an Account Debtor for which
more than 25% of the Accounts owing from such Account Debtor and its Affiliates
are ineligible hereunder;


 


(e)                                  which is owing by an Account Debtor to the
extent the aggregate amount of Accounts owing from such Account Debtor and its
Affiliates to the Borrower and its Subsidiaries taken as a whole exceeds 25% of
the aggregate Eligible Billed Accounts and Eligible Unbilled Accounts;


 


(f)                                    with respect to which any covenant,
representation, or warranty contained in this Agreement or in the Security
Agreement has been breached or is not true;


 


(g)                                 which does not arise from the sale of goods
or performance of services in the ordinary course of business;


 


8

















 


(h)                                 with respect to which any check or other
instrument of payment has been returned uncollected for any reason;


 


(i)                                     which is owed by an Account Debtor which has
(i) applied for, suffered, or consented to the appointment of any receiver,
custodian, trustee, or liquidator of its assets, (ii) has had possession of all
or a material part of its property taken by any receiver, custodian, trustee or
liquidator, (iii) filed, or had filed against it, any request or petition for
liquidation, reorganization, arrangement, adjustment of debts, adjudication as
bankrupt, winding-up, or voluntary or involuntary case under any state or
federal bankruptcy laws, (iv) admitted in writing its inability, or is
generally unable to, pay its debts as they become due, (v) become insolvent, or
(vi) ceased operation of its business;


 


(j)                                     which is owed by any Account Debtor which has
sold all or a substantially all of its assets;


 


(k)                                  which is owed by an Account Debtor which (i)
does not maintain its chief executive office in the U.S. or (ii) is not
organized under applicable law of the U.S. or any state of the U.S. unless, in
either case, such Account is backed by a Letter of Credit acceptable to the
Agent which is in the possession of the Agent;


 


(l)                                     which is owed in any currency other than U.S.
dollars;


 


(m)                               which is owed by (i) the government (or any department, agency, public
corporation, or instrumentality thereof) of any country other than the U.S.
unless such Account is backed by a Letter of Credit acceptable to the Agent
which is in the possession of the Agent or (ii) the government of the U.S., or
any department, agency, public corporation, or instrumentality thereof, unless
the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et
seq. and 41 U.S.C. § 15 et  seq.), and any other steps
necessary to perfect the Lien of the Agent in such Account have been complied
with to the Agent’s satisfaction;


 


(n)                                 which, for any Account Debtor, exceeds a
credit limit determined by the Agent, to the extent of such excess;


 


(o)                                 which is owed by an Account Debtor or any
Affiliate of such Account Debtor to which the Borrower or any Subsidiary is
indebted, but only to the extent of such indebtedness;


 


(p)                                 which is subject to any counterclaim,
deduction, defense, setoff or dispute;


 


(q)                                 which is evidenced by any promissory note,
chattel paper, or instrument;


 


(r)                                    which is owed by an Account Debtor located in
any jurisdiction which requires filing of a “Notice of Business Activities
Report” or other similar report in order to permit the Borrower to seek
judicial enforcement in such jurisdiction of payment of such Account, the
Borrower has filed such report or qualified to do business in such
jurisdiction;


 


(s)                                  with respect to which the Borrower or any
Subsidiary has made any agreement with the Account Debtor for any reduction
thereof, other than discounts and adjustments given in the ordinary course of
business; or


 


9

















 


(t)                                    which the Agent determines may not be paid by
reason of the Account Debtor’s inability to pay or which the Agent otherwise
determines is unacceptable for any reason whatsoever.


 


In
the event that an Account which was previously an Eligible Billed Account
ceases to be an Eligible Billed Account hereunder, the Borrower shall notify
the Agent thereof (i) within three (3) Business Days of the date the Borrower
has obtained knowledge thereof if any such Account is in excess of $100,000 in
the aggregate and (ii) on and at the time of submission to the Agent of the
next Borrowing Base Certificate in all other cases.


 


“Eligible
Materials and Supplies Inventory” means Materials and Supplies Inventory of
the Borrower which the Agent determines in its Permitted Discretion is eligible
as the basis for Credit Extensions hereunder. 
Without limiting the Agent’s discretion provided herein, Eligible
Material and Supplies Inventory shall not include any Materials and Supplies
Inventory not meeting the criteria set forth in any of clauses (a) through (i)
of the definition of “Eligible Stored Gas Inventory.”  In the event that Materials and Supplies Inventory which was
previously Eligible Materials and Supplies Inventory ceases to be Eligible
Materials and Supplies Inventory hereunder, the Borrower shall notify the Agent
thereof (i) within three (3) Business Days of the date the Borrower has
obtained knowledge thereof if any such Materials and Supplies Inventory has a
value (based on the lower of cost, determined on a first-in, first-out basis,
or market) in excess of $100,000 in the aggregate and (ii) on and at the time
of submission to the Agent of the next Borrowing Base Certificate in all other
cases.


 


“Eligible
Stored Gas Inventory” means, at any time, the Stored Gas Inventory of the
Borrower which the Agent determines in its Permitted Discretion is eligible as
the basis for Credit Extensions hereunder. 
Without limiting the Agent’s discretion provided herein, Eligible Stored
Gas Inventory shall not include any Stored Gas Inventory:


 


(a)                                  which is not subject to a first priority
perfected Lien in favor of the Agent;


 


(b)                                 which is subject to any Lien other than a
Lien in favor of the Agent;


 


(c)                                  which is, in the Agent’s opinion, unmerchantable,
unfit for sale or not salable at prices approximating at least the cost of such
Inventory in the ordinary course of business;


 


(d)                                 with respect to which any covenant,
representation, or warranty contained in this Agreement or the Security Agreement
has been breached or is not true;


 


(e)                                  which does not conform to all standards
imposed by any governmental authority;


 


(f)                                    which is not located in the U.S. or is in
transit with a common carrier from vendors and suppliers;


 


(g)                                 as to which the Borrower has not delivered a
Collateral Access Agreement, if requested by the Agent;


 


(h)                                 which is not reflected in a current perpetual
inventory report of the Borrower; or


 


(i)                                     which the Agent otherwise determines is
unacceptable for any reason whatsoever.


 


In
the event that Stored Gas Inventory which was previously Eligible Stored Gas
Inventory ceases to be Eligible Stored Gas Inventory hereunder, the Borrower
shall notify the Agent thereof (i) within three


 


10

















 


(3) Business Days of the date the Borrower
has obtained knowledge thereof if any such Stored Gas Inventory has a value
(based on the lower of cost, determined on a first-in, first-out basis, or
market) in excess of $100,000 in the aggregate and (ii) on and at the time of
submission to the Agent of the next Borrowing Base Certificate in all other
cases.


 


“Eligible
Turbine Collateral” means, at any time, the Turbine Collateral which the
Agent determines in its Permitted Discretion is eligible as the basis for Credit
Extensions hereunder.  Without limiting
the Agent’s discretion provided herein, Eligible Turbine Collateral shall not
include any Turbine Collateral:


 


(a)                                  which is not subject to a first priority
perfected Lien in favor of the Agent;


 


(b)                                 which is subject to any Lien other than a
Lien in favor of the Agent;


 


(c)                                  which has partially or in full been installed
or affixed in any manner to any Property or which is otherwise not in the
original condition as delivered from the manufacturer;


 


(d)                                 with respect to which any covenant,
representation, or warranty contained in this Agreement or the Security
Agreement has been breached or is not true;


 


(e)                                  which is not located in the U.S. or is in
transit with a common carrier;


 


(f)                                    as to which any Loan Party has not delivered
a Collateral Access Agreement, if requested by the Agent; or


 


(g)                                 which the Agent otherwise determines is
unacceptable for any reason whatsoever.


 


In
the event that Turbine Collateral which was previously Eligible Turbine
Collateral ceases to be Eligible Turbine Collateral hereunder, the Borrower
shall notify the Agent thereof within three (3) Business Days of the date the
Borrower has obtained knowledge thereof.


 


“Eligible
Unbilled Accounts” means, at any time, the Accounts of the Borrower not yet
billed to customers which the Agent determines in its Permitted Discretion are
eligible as the basis for Credit Extensions hereunder.  Without limiting the Agent’s discretion
provided herein, Eligible Unbilled Accounts shall not include any Account not meeting
the criteria set forth in any of clauses (a) through (t) (excluding clause (c))
of the definition of “Eligible Billed Accounts.”  In addition, “Eligible Unbilled Accounts” shall exclude any
unbilled Account which remains unbilled for thirty days or more after the date
such unbilled Account was created.  In
the event that an Account which was previously an Eligible Unbilled Account
ceases to be an Eligible Unbilled Account hereunder, the Borrower shall notify the
Agent thereof (i) within three (3) Business Days of the date the Borrower has
obtained knowledge thereof if any such Account is in excess of $100,000 in the
aggregate and (ii) on and at the time of submission to the Agent of the next
Borrowing Base Certificate in all other cases.


 


“Eligible
Working Gas and Fuels Inventory” means, at any time, the Working Gas and
Fuels Inventory of the Borrower which the Agent determines in its Permitted
Discretion is eligible as the basis for Credit Extensions hereunder.  Without limiting the Agent’s discretion
provided herein, Eligible Working Gas and Fuels Inventory shall not include any
Working Gas and Fuels Inventory not meeting the criteria set forth in any of
clauses (a) through (i) of the definition of “Eligible Stored Gas Inventory.”  In the event that Working Gas and Fuels
Inventory which was previously Eligible Working Gas and Fuels Inventory ceases
to be Eligible Working Gas and Fuels Inventory hereunder, the Borrower shall
notify the Agent thereof (i) within three (3) Business Days of the date the Borrower
has obtained knowledge thereof


 


11

















 


if any such Working Gas and Fuels Inventory
has a value (based on the lower of cost, determined on a first-in, first-out
basis, or market) in excess of $100,000 in the aggregate and (ii) on and at the
time of submission to the Agent of the next Borrowing Base Certificate in all
other cases.


 


“Environmental
Laws” means any and all federal, state, local and foreign statutes, laws,
judicial decisions, regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (a) the protection
of the environment, (b) the effect of the environment on human health, (c)
emissions, discharges or releases of pollutants, contaminants, hazardous
substances or wastes into surface water, ground water or land or (d) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.


 


“Equipment”
has the meaning specified in the Security Agreement.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any rule or regulation issued thereunder.


 


“Eurodollar
Advance” means an Advance which, except as otherwise provided in Section
2.12, bears interest at the applicable Eurodollar Rate.


 


“Eurodollar
Base Rate” means, with respect to a Eurodollar Advance for the relevant
Interest Period, the applicable British Bankers’ Association LIBOR rate for
deposits in U.S. dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided  that, if no such British Bankers’
Association LIBOR rate is available to the Agent, the applicable Eurodollar
Base Rate for the relevant Interest Period shall instead be the rate determined
by the Agent to be the rate at which Bank One or one of its Affiliate banks
offers to place deposits in U.S. dollars with first class banks in the
interbank market at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, in the approximate amount of
Bank One’s relevant Eurodollar Loan and having a maturity equal to such
Interest Period.


 


“Eurodollar
Loan” means a Loan which, except as otherwise provided in Section 2.12,
bears interest at the applicable Eurodollar Rate.


 


“Eurodollar
Rate” means, with respect to a Eurodollar Advance for the relevant Interest
Period, the sum of (a) the quotient of (i) the Eurodollar Base Rate applicable
to such Interest Period, divided by
(ii) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus (b) the Applicable Margin.


 


“Excluded
Subsidiaries” means Clark Fork and Blackfoot, LLC, Expanets and its
Subsidiaries, Blue Dot and its Subsidiaries and Cornernorth, LLC and its
Subsidiaries,


 


“Excluded
Taxes” means, in the case of each Lender or applicable Lending Installation
and the Agent, (i) taxes imposed on its overall net income, and franchise taxes
imposed in lieu thereof, by (a) the jurisdiction under the laws of which such
Lender or the Agent is incorporated or organized or (b) the jurisdiction in
which the Agent’s or such Lender’s principal executive office or such Lender’s
applicable Lending Installation is located, in each case, other than net income
or franchise taxes imposed on or with respect to Taxes or Other Taxes, (ii)
U.S. federal withholding taxes at the rate (and only at the rate) imposed on
payments to a Non-U.S. Lender or the Agent at the time such Lender or the Agent
becomes a party to this Agreement, other than to the extent that such Person’s
predecessor in interest was entitled to


 


12

















 


indemnification or increased amounts with
respect to such taxes and (iii) U.S. federal withholding taxes, imposed on
payments to a Non-U.S. Lender, that would not have been imposed but for such
Non-U.S. Lender’s failure to comply with its obligations under Section
3.5(d).


 


“Exhibit”
refers to an exhibit to this Agreement, unless another document is specifically
referenced.


 


“Expanets”
means Expanets, Inc., a Delaware corporation and a Subsidiary.


 


“Facility”
means the credit facility described in Section 2.1 to be provided to the
Borrower on the terms and conditions set forth in this Agreement.


 


“Facility
LC” is defined in Section 2.1.2(a).


 


“Facility
LC Application” is defined in Section 2.1.2(c).


 


“Facility
LC Collateral Account” is defined in Section 2.1.2(j).


 


“Facility
Termination Date” means the earliest to occur of (a) the Scheduled
Termination Date, (b) the substantial consummation (as defined in Section 1101
of the Bankruptcy Code) of a Reorganization Plan that is confirmed pursuant to
a final, non-appealable order entered by the Bankruptcy Court or any other
court having jurisdiction in the Case, but in no event shall such date be later
than the effective date of such Reorganization Plan, (c) the date of the
voluntary termination of the Commitments by the Borrower and (d) any earlier
date on which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms of the Loan Documents including without
limitation pursuant to Section 8.1.


 


“Federal
Funds Effective Rate” means, for any day, an interest rate per annum equal
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published for such day (or, if such day is not a Business Day, for
the immediately preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations at approximately 10:00 a.m. (Chicago time) on
such day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent in its sole discretion.


 


“Fee
Letter” is defined in Section 2.10(c).


 


“Final
Order” means either (i) an order of the Bankruptcy Court in the Case of the
type contemplated by clause (n) of Section 4.2 or (ii) an order of the Bankruptcy
Court in the Case, entered in any event not later than forty-five days
following the Petition Date, acceptable in all respects to the Agent and the
Lenders on an application or motion by the Borrower, such motion to be
satisfactory in form and substance to the Lenders, which order shall have been
entered on such notice to such parties as may be satisfactory to the Agent and
the Lenders, approving the Facility and borrowing under the Facility up to
$100,000,000 with respect to Revolving Loans on a final basis and confirming
the granting of the Liens described in Section 2.25, 2.26 and the
other Loan Documents, and in each of (i) and (ii) above which order has not
been stayed, reversed, modified, vacated or overturned.


 


“Financial
Contract” of a Person means (a) any exchange-traded or over-the-counter
futures, forward, swap or option contract or other financial instrument with
similar characteristics or (b) any Rate Management Transaction.


 


13

















 


“Fiscal
Month” means any of the monthly accounting periods of the Borrower and its
Subsidiaries.


 


“Fiscal
Quarter” means any of the quarterly accounting periods of the Borrower and
its Subsidiaries, ending on March 31, June 30, September 30 and December 31 of
each year.


 


“Fiscal
Year” means any of the annual accounting periods of the Borrower and its
Subsidiaries ending on December 31 of each year.


 


“Fixtures”
has the meaning specified in the Security Agreement.


 


“Flex-Pricing
Provision” means any term or provision of any fee letter, commitment letter
or term sheet delivered in connection with the transaction which is the subject
of this Agreement which purports to permit the Agent or the Arranger to change
any or all of the structure, terms or pricing of the credit facility evidenced
by this Agreement either before or after the closing of this Agreement in order
to allow the Agent and/or Arranger to successfully syndicate such credit
facility either before or after the closing of this Agreement.


 


“Floating
Rate” means, for any day, a rate per annum equal to (a) the Alternate Base
Rate for such day plus (b) the Applicable Margin, in each case changing when
and as the Alternate Base Rate changes.


 


“Floating
Rate Advance” means an Advance which, except as otherwise provided in Section
2.12, bears interest at the Floating Rate.


 


“Floating
Rate Loan” means a Loan which, except as otherwise provided in Section
2.12, bears interest at the Floating Rate.


 


“Foreign
Subsidiary” means any Subsidiary which is not a Domestic Subsidiary.


 


“Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.


 


“Funding
Account” is defined in Section 2.5.


 


“Gas
Storage Facilities” is defined in Section 5.33.


 


“GAAP”
means generally accepted accounting principles as in effect from time to time,
applied in a manner consistent with that used in preparing the financial
statements referred to in Section 5.5.


 


“Guaranteed
Obligations” is defined in Section 15.1.


 


“Guarantor”
means each Subsidiary guarantying the obligations of the Borrower under the
Loan Documents pursuant to a Guaranty or otherwise, and the successors and
assigns of each of the foregoing.


 


“Guaranty”
means Article XV of this Agreement.


 


“Indebtedness”
of a Person means such Person’s (a) obligations for borrowed money, (b)
obligations representing the deferred purchase price of Property or services
(other than accounts payable arising in the ordinary course of such Person’s
business payable on terms customary in the trade), (c) obligations, whether or
not assumed, secured by Liens or payable out of the proceeds or production from


 


14

















 


Property now or hereafter owned or acquired
by such Person, (d) obligations which are evidenced by notes, acceptances, or
other instruments, (e) obligations of such Person to purchase securities or
other Property arising out of or in connection with the sale of the same or
substantially similar securities or Property or any other Off-Balance Sheet
Liabilities, (f) Capitalized Lease Obligations, (g) Contingent Obligations for
which the underlying transaction constitutes Indebtedness under this definition,
(h) the maximum available stated amount of all letters of credit or bankers’
acceptances created for the account of such Person and, without duplication,
all reimbursement obligations with respect to letters of credit, (i) Rate
Management Transactions/Net Mark-to-Market Exposure under all Rate Management
Transactions, (j) obligations of such Person under any Sale and Leaseback
Transaction, (k) obligations under any liquidated earn-out and (l) any other
obligation for borrowed money or other financial accommodation which in
accordance with GAAP would be shown as a liability on the consolidated balance
sheet of such Person.


 


“Intellectual
Property Rights” means, with respect to any Person, all of such Person’s
Patents, Copyrights, Trademarks, and Licenses, all other rights under any of
the foregoing, all extensions, renewals, reissues, divisions, continuations and
continuations-in-part of any of the foregoing, and all rights to sue for past,
present, and future infringement of any of the foregoing.


 


 “Interest Period” means, with respect
to a Eurodollar Advance, a period of one, two, three or six months commencing
on a Business Day selected by the Borrower pursuant to this Agreement.  Such Interest Period shall end on the day which
corresponds numerically to such date one, two, three or six months thereafter, provided
however, that if there is no such numerically corresponding day in such
next, second, third or sixth succeeding month, such Interest Period shall end
on the last Business Day of such next, second, third or sixth succeeding
month.  If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next succeeding Business Day, provided  however, that
if said next succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business Day.


 


“Interim
Order” is defined in Section 4.1(bb).


 


“Investment”
of a Person means any (a) loan, advance, extension of credit (other than
accounts receivable arising in the ordinary course of business on terms
customary in the trade) or contribution of capital by such Person, (b) stocks,
bonds, mutual funds, partnership interests, notes, debentures, securities or
other Capital Stock owned by such Person, (c) any deposit accounts and
certificate of deposit owned by such Person and (d) structured notes,
derivative financial instruments and other similar instruments or contracts
owned by such Person.


 


“ISO”
means any “Independent System Operator” or similar entity approved by the
Federal Energy Regulatory Energy Commission to manage transmission systems
owned by the Borrower and its Subsidiaries.


 


“LC
Fee” is defined in Section 2.10(b).


 


“LC
Issuer” means Bank One (or any subsidiary or Affiliate of Bank One
designated by Bank One) in its capacity as an issuer of Facility LCs hereunder.


 


“LC
Obligations” means, at any time, the sum, without duplication, of (a) the
aggregate undrawn stated amount under all Facility LCs outstanding at such time
plus (b) the aggregate unpaid
amount at such time of all Reimbursement Obligations.


 


“LC
Payment Date” is defined in Section 2.1.2(d).


 


15

















 


“Lenders”
means the lending institutions listed on the signature pages of this Agreement
and their respective successors and assigns.


 


“Lending
Installation” means, with respect to a Lender, the LC Issuer or the Agent,
the office, branch, subsidiary or Affiliate of such Lender, LC Issuer or the
Agent listed on the signature pages hereof or on a Schedule or otherwise
selected by such Lender, the LC Issuer or the Agent pursuant to Section 2.22.


 


“Letter
of Credit” of a Person means a letter of credit or similar instrument which
is issued upon the application of such Person or upon which such Person is an
account party or for which such Person is in any way liable.


 


“Licenses”
shall have the meaning given to such term in the Security Agreement.


 


“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention agreement).


 


“Loan
Documents” means this Agreement, any Notes, the Facility LC Applications,
the Collateral Documents, any guaranties other than the one contained in Article
XV of this Agreement, and all other agreements, instruments, documents and
certificates identified in Article IV executed and delivered to, or in
favor of, the Agent or any Lenders and including all other pledges, powers of
attorney, consents, assignments, contracts, notices, letter of credit
agreements and all other written matter whether now or hereafter executed by or
on behalf of any Loan Party, or any employee of any Loan Party, and delivered
to the Agent or any Lender in connection with the Agreement or the transactions
contemplated thereby.  Any reference in
the Agreement or any other Loan Document to a Loan Document shall include all
appendices, exhibits or schedules thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to the Agreement or
such Loan Document as the same may be in effect at any and all times such
reference becomes operative.


 


“Loan
Parties” means the Borrower, each Guarantor and any other Person (other
than the Agent, the LC Issuer or any Lender) who becomes a party to this
Agreement or who becomes a party to any other Loan Document.


 


“Loans”
means, with respect to a Lender, such Lender’s loans made pursuant to Article
II (or any conversion or continuation thereof), including Non-Ratable
Loans.


 


“Material
Adverse Effect” means a material adverse effect on (a) the business,
Property, condition (financial or otherwise), results of operations or
prospects of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of any Loan Party to perform its obligations under the Loan Documents
to which it is a party, (c) the Collateral, or the Agent’s Liens (on behalf of
itself and the other Secured Parties) on the Collateral or the priority of such
Liens or (d) the validity or enforceability of any of the Loan Documents or the
rights or remedies of the Agent, the LC Issuer or the Lenders thereunder.


 


“Material
and Supplies Inventory” means materials and supplies used for ongoing
utility maintenance including circuit breakers and wires.


 


“Material
Indebtedness” means Indebtedness in an outstanding principal amount of
$1,000,000 or more in the aggregate (or the equivalent thereof in any currency
other than U.S. dollars).


 


16

















 


“Material
Indebtedness Agreement” means any agreement under which any Material
Indebtedness was created or is governed or which provides for the incurrence of
Indebtedness in an amount which would constitute Material Indebtedness (whether
or not an amount of Indebtedness constituting Material Indebtedness is
outstanding thereunder).


 


“Maximum
Rate” is defined in Section 2.24.


 


“MM
I” means Montana Megawatts I, LLC (f/k/a Merchant Energy Ventures LLC), a
Delaware limited liability company and a Wholly-Owned Subsidiary of the
Borrower.


 


“Modify”
and “Modification” are defined in Section 2.1.2(a).


 


“Montana
Bonds” means the First Mortgage Bonds, Credit Agreement (2002) Series, due
2006, authenticated and delivered under that certain Mortgage and Deed of Trust
dated as of October 1, 1945 from the Borrower (as successor thereunder to
NorthWestern Energy, L.L.C., in turn successor thereunder to The Montana Power
Company) to the trustees named therein, as supplemented and amended, including
by the Twenty-third Supplemental Indenture, dated as of February 1, 2003, to
such Mortgage and Deed of Trust.


 


“Montana
Collateral” is defined in the Recitals to this Agreement.


 


“Montana
Maximum Amount” means the aggregate principal amount outstanding on the
Montana Bonds, together with accrued and unpaid interest thereon and all other
obligations with respect thereto, immediately prior to the funding of the Term
Loans and the repayment in full of the CSFB Loan as contemplated by Section
2.4.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Mortgages”
means any mortgage, deed of trust or other agreement which conveys or evidences
a Lien in favor of the Agent, for the benefit of the Agent and the other
Secured Parties, on real Property of a Loan Party, including any amendment,
modification or supplement thereto.


 


“Multiemployer
Plan” means a Plan maintained pursuant to a collective bargaining agreement
or any other arrangement to which the Borrower or any member of the Controlled
Group is a party to which more than one employer is obligated to make
contributions.


 


“Net
Cash Proceeds” means, if in connection with (a) an asset disposition, cash
proceeds net of (i) commissions and other reasonable and customary transaction
costs, fees and expenses properly attributable to such transaction and payable
by such Loan Party in connection therewith (in each case, paid to non-Affiliates),
(ii) transfer taxes, (iii) amounts payable to holders of senior Liens on such
asset (to the extent such Liens constitute Permitted Liens hereunder), if any,
and (iv) amounts payable to holders of equal Liens on such asset to the extent
of such Lien holder’s applicable pro rata share in such cash proceeds (to the
extent such Liens constitute Permitted Liens hereunder), if any, (b) the
issuance or incurrence of Indebtedness, cash proceeds net of attorneys’ fees,
investment banking fees, accountants’ fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith, (c) an equity issuance, cash proceeds net of underwriting
discounts and commissions and other reasonable costs paid to non-Affiliates in
connection therewith and (d) with respect to any other mandatory prepayment
event described in Section 2.15, the cash proceeds thereof.


 


“Net
Mark-to-Market Exposure” of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management


 


17

















 


Transactions.  As used in this definition, “unrealized losses” means the fair
market value of the cost to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming the Rate Management
Transaction were to be terminated as of that date), and “unrealized profits”
means the fair market value of the gain to such Person of replacing such Rate
Management Transaction as of the date of determination (assuming such Rate
Management Transaction were to be terminated as of that date).


 


“Net
Orderly Liquidation Value” means, with respect to Turbine Collateral, the
orderly liquidation value thereof as determined in a manner reasonably
acceptable to the Agent, net of all costs of liquidation thereof, such Net
Orderly Liquidation Value initially $37,500,000.


 


“NG
I” means Northwestern Generation I, LLC, a Delaware limited liability
company and a Wholly-Owned Subsidiary of the Borrower.


 


“Non-Ratable
Loan” and “Non-Ratable Loans” are defined in Section 2.1.3.


 


“Non-U.S.
Lender” is defined in Section 3.5(d).


 


“Notes”
means, collectively, the Revolving Notes and the Term Notes.


 


“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans, all
LC Obligations, all accrued and unpaid fees and all expenses, guaranty
obligations, reimbursements, indemnities and other obligations of the Loan
Parties to the Lenders or to any Lender, the Agent, the LC Issuer or any
indemnified party arising under the Loan Documents.


 


“Off-Balance
Sheet Liability” of a Person means (a) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by
such Person, (b) any indebtedness, liability or obligation under any Sale and
Leaseback Transaction which is not a Capitalized Lease, (c) any indebtedness,
liability or obligation under any so-called “synthetic lease” transaction
entered into by such Person or (d) any indebtedness, liability or obligation
arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheets of such Person, but excluding from this clause
(d) Operating Leases.


 


“Operating
Lease” of a Person means any lease of Property (other than a Capitalized
Lease) by such Person as lessee which has an original term (including any
required renewals and any renewals effective at the option of the lessor) of
one year or more.


 


“Operating
Lease Obligations” means, as at any date of determination, the amount
obtained by aggregating the present values, determined in the case of each
particular Operating Lease by applying a discount rate (which discount rate
shall equal the discount rate which would be applied under GAAP if such
Operating Lease were a Capitalized Lease) from the date on which each fixed
lease payment is due under such Operating Lease to such date of determination,
of all fixed lease payments due under all Operating Leases of the Borrower and
its Subsidiaries.


 


“Orders”
shall mean the Interim Order and the Final Order.


 


“Other
Taxes” is defined in Section 3.5(b).


 


“Participants”
is defined in Section 12.2(a).


 


“Patents”
shall have the meaning given to such term in the Security Agreement.


 


18



















 


“Payment
Date” means (a) with respect to interest payments due on any
Floating Rate Loan, the first day of each calendar month and the Facility
Termination Date, (b) with respect to interest payments due on any Eurodollar
Loan, (i) the last day of the applicable Interest Period and (ii) in the case
of any Interest Period in excess of three months, the day which is three months
after the first day of such Interest Period, and (iii) the Facility Termination
Date and (c) with respect to any payment of LC Fees or Unused Commitment Fees,
the first day of each calendar quarter and the Facility Termination Date.


 


“PBGC”
means the Pension Benefit Guaranty Corporation, or any successor thereto.


 


“Permitted
Discretion” means a determination made in good faith and in the
exercise of reasonable (from the perspective of a secured lender) business
judgment.


 


“Permitted Financial
Contracts” means Financial Contracts consisting of contracts to purchase or
sell natural gas or electricity entered into by the Borrower in the ordinary
course of business consistent with past practice and not for speculative
purposes.


 


“Permitted
Liens” means (i) Liens imposed by law (other than Environmental
Liens and any Lien imposed under ERISA) for taxes, assessments or charges of
any governmental authority for claims not yet due or which are being contested
in good faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained in accordance
with GAAP; (ii) Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens (other than Environmental Liens and any
Lien imposed under ERISA) in existence on the Petition Date or thereafter
imposed by law and created in the ordinary course of business; (iii) Liens
(other than any Lien imposed under ERISA) incurred or deposits made in the
ordinary course of business (including, without limitation, surety bonds and
appeal bonds) in connection with workers’ compensation, unemployment insurance
and other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations; (iv)
easements (including, without limitation, reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded) and interest of ground lessors, which do
not interfere materially with the ordinary conduct of the business of the
Borrower or any Subsidiary (other than Excluded Subsidiaries) and which do not
materially detract from the value of the property to which they attach or
materially impair the use thereof to the Borrower or any Subsidiary (other than
Excluded Subsidiaries); (v) letters of credit or deposits in the ordinary
course to secure leases; (vi) Liens which were existing on the Petition Date as
reflected on Schedule 1(a); (vii) adequate protection Liens approved by
the Bankruptcy Court and not inconsistent with the Orders on any asset of the
Borrower which replaces an asset that was, on the Petition Date, subject to a
valid, enforceable, perfected, and nonavoidable Lien, provided such Lien
is in favor of the Person holding such pre-petition Lien, is of the same
priority as the Lien being replaced and secures a claim in an amount not
exceeding the claim secured by such pre-petition Lien; (viii) Liens in favor of
the Agent and the Secured Parties securing the Obligations; and (ix) Liens
securing purchase money Indebtedness or Capitalized Lease Obligations permitted
by Section 6.17.


 


“Permitted Pre-Petition
Payments” means Pre-Petition Payments by the Borrower on account of
pre-petition claims against the Borrower with respect to critical vendors,
employee wages and benefits, taxes and payments of regularly scheduled
principal and interest on the senior secured Indebtedness of the Borrower set
forth on Schedule 1(b), such payments to be approved by the Agent or the
Bankruptcy Court.


 


19

















 


“Person”
means any natural person, corporation, firm, joint venture, partnership,
limited liability company, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.


 


“Petition
Date” is defined in the recitals to this Agreement.


 


“Plan”
means an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code as to
which the Borrower or any member of the Controlled Group may have any
liability.


 


“Pre-Petition
Payment” means a payment (by way of adequate protection or
otherwise) of principal or interest or otherwise on account of any pre-petition
Indebtedness or trade payable or other pre-petition claims against the
Borrower.


 


“Prime
Rate” means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.


 


“Projections”
is defined in Section 6.1(t).


 


“Property”
of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated
by such Person.


 


“Pro
Rata Share” means, with respect to any Lender, (a) with respect to
Revolving Loans, LC Obligations, or Non-Ratable Loans, a portion equal to a
fraction the numerator of which is such Lender’s Revolving Commitment and the
denominator of which is the aggregate Revolving Commitment of all Revolving
Lenders and (b) with respect to Term Loans, a portion equal to a fraction the
numerator of which is such Lender’s outstanding principal amount of the Term
Loan and the denominator of which is the aggregate outstanding amount of the
Term Loans of all Term Lenders.


 


“Purchasers”
is defined in Section 12.3(a).


 


“Rate
Management Obligations” of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all Rate
Management Transactions and (b) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.


 


“Rate
Management Transaction” means any transaction (including an
agreement with respect thereto) now existing or hereafter entered by the
Borrower or any Subsidiary (other than Excluded Subsidiaries) which is a rate
swap, basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, forward transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.


 


“Regulation
D” means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or
other regulation or official interpretation of said


 


20

















 


Board
of Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.


 


“Regulation
U” means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to
the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve System.


 


“Reimbursement
Obligations” means, at any time, the aggregate of all obligations of
the Borrower then outstanding under Section 2.1.2 to reimburse the LC
Issuer for amounts paid by the LC Issuer in respect of any one or more drawings
under Facility LCs.


 


“Reorganization
Plan” means a plan of reorganization in the Case.


 


“Reportable
Event” means a reportable event as defined in Section 4043 of ERISA
and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within thirty
days of the occurrence of such event, provided  however, that a
failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.


 


“Reports”
is defined in Section 9.6(a)(i).


 


“Required
Lenders” means Lenders in the aggregate having at least a majority
of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least a majority of the
Aggregate Credit Exposure.


 


“Required
Revolving Lenders” means Revolving Lenders in the aggregate having
at least a majority of the Revolving Commitment or, if the Revolving Commitment
has been terminated, Revolving Lenders in the aggregate holding at least a
majority of the Aggregate Revolving Exposure.


 


“Reserve
Requirement” means, with respect to an Interest Period, the maximum
aggregate reserve requirement (including all basic, supplemental, marginal and
other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.


 


“Reserves”
means any and all reserves which the Agent deems necessary, in its Permitted
Discretion, to maintain (including, without limitation, reserves for accrued
and unpaid interest on the Secured Obligations, Banking Services Reserves,
reserves for rent at locations leased by any Loan Party and for warehousemen’s
and bailee’s charges, reserves for dilution of Accounts, reserves for Rate
Management Transactions, reserves for contingent liabilities of the Borrower
that could constitute administrative claims in the Case, reserves for uninsured
losses of any Loan Party, reserves for taxes, fees, assessments, and other
governmental charges and reserves with respect to the Carve-Out) with respect
to the Collateral, the Carve-Out, the condition (financial or otherwise) of any
Loan Party or the Case.


 


“Revolving
Commitment” means (a) as to any Revolving Lender, the aggregate
commitment of such Revolving Lender to make Revolving Loans or incur LC
Obligations as set forth in the Commitment Schedule or in the most
recent Assignment Agreement executed by such Revolving Lender and (b) as to all
Revolving Lenders, the aggregate commitment of all Revolving Lenders to make
Revolving Loans or incur LC Obligations, which aggregate commitment shall be
One Hundred Million Dollars


 


21

















 


($100,000,000)
on the Effective Date, as such amount may be adjusted, if at all, from time to
time in accordance with this Agreement.


 


“Revolving
Exposure” means, as to any Lender at any time, the sum of (a) an
amount equal to its Pro Rata Share of the aggregate principal amount of the
Revolving Loans outstanding at such time, plus
(b) an amount equal to its Pro Rata Share of any LC Obligations
at such time, plus (c) an
amount equal to its Pro Rata Share of the aggregate principal amount of
Non-Ratable Loans outstanding at such time.


 


“Revolving
Lenders” means, as of any date of determination, Lenders having a
Revolving Commitment.


 


“Revolving
Loans” is defined in Section 2.1.1(a).


 


“Revolving
Note” is defined in Section 2.21(d).


 


“S&P”
means Standard and Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc.


 


“Sale
and Leaseback Transaction” means any sale or other transfer of Property by
any Person with the intent to lease such Property as lessee.


 


“Schedule”
refers to a specific schedule to this Agreement, unless another document is
specifically referenced.


 


“Scheduled
Termination Date” means September 12, 2004.


 


“Section”
means a numbered section of this Agreement, unless another document is
specifically referenced.


 


“Secured
Obligations” means, collectively, (i) the Obligations, (ii) all Banking
Services Obligations and (iii) all Rate Management Obligations owing to Bank
One or any Affiliate of Bank One.


 


“Secured
Parties” means each of the Lenders, the LC Issuer, the Agent, the
beneficiaries of each indemnification or reimbursement obligation undertaken by
any of the Loan Parties under any of the Loan Documents, and the successors and
assigns of each of the foregoing.


 


“Security
Agreement” means that certain Pledge and Security Agreement, dated
as of the date hereof, among the Borrower, the Guarantors and the Agent, for
the benefit of the Secured Parties, as the same may be amended, restated or
otherwise modified from time to time.


 


“Single
Employer Plan” means a Plan maintained by the Borrower or any member
of the Controlled Group for employees of the Borrower or any member of the
Controlled Group.


 


“South
Dakota Bonds” means the New Mortgage Bonds, Credit Agreement (2002)
Series, authenticated and delivered under that certain General Mortgage
Indenture and Deed of Trust dated as of August 1, 1993 between the Borrower and
The Chase Manhattan Bank (National Association) (JPMorgan Chase Bank, as
successor), as trustee, as supplemented and amended, including by that certain
Supplemental Indenture thereto dated as of February 1, 2003.


 


“South Dakota Collateral”
is defined in the Recitals to this Agreement.


 


22

















 


“South Dakota Maximum
Amount” means the aggregate principal amount outstanding on the South
Dakota Bonds, together with accrued and unpaid interest thereon and all other
obligations with respect thereto, immediately prior to the funding of the Term
Loans and the repayment in full of the CSFB Loan as contemplated by Section
2.4.


 


“Stored Gas
Inventory” means natural gas required to maintain the pressure of the gas
storage facilities owned by the Borrower.


 


“Subsidiary”
of a Person means any corporation, partnership, limited liability company,
association, joint venture or similar business organization more than 50% of
the outstanding Capital Stock having ordinary voting power of which shall at
the time be owned or controlled by such Person.  Unless otherwise expressly provided, all references herein to a
“Subsidiary” shall mean a Subsidiary of the Borrower.


 


“Substantial
Portion” means Property which represents more than 5% of the
consolidated assets of the Borrower and its Subsidiaries or property which is
responsible for more than 5% of the consolidated net sales or of the
consolidated net income of the Borrower and its Subsidiaries, in each case, as
would be shown in the consolidated financial statements of the Borrower and its
Subsidiaries as at the beginning of the twelve-month period ending with the
month in which such determination is made (or if financial statements have not
been delivered hereunder for that month which begins the twelve-month period,
then the financial statements delivered hereunder for the quarter ending
immediately prior to that month).


 


“Superpriority
Claim” means a claim against the Borrower in the Case which is an
administrative expense claim having priority over any or all administrative
expenses of the kind specified in Sections 503(b) or 507(b) of the Bankruptcy
Code.


 


“Supporting
Letter of Credit” is defined in Section 2.1.2(l).


 


“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded Taxes and Other Taxes.


 


“Term
Lenders” means, as of any date of determination, Lenders having a Term
Loan Commitment.


 


“Term
Loan Commitment” means (a) (i) as to any Term Lender prior to the
Term Loan Commitment Effective Date, $0, and (ii) as to any Term Lender on and
after the Term Loan Commitment Effective Date, the aggregate commitment of such
Term Lender to make Term Loans on the Term Loan Commitment Effective Date as
set forth in the Commitment Schedule under the heading “Term Loan
Commitment” or in the most recent Assignment Agreement executed by such Term
Lender and (b) as to all Term Lenders, the aggregate commitment of all Term
Lenders to make Term Loans.  After
advancing the Term Loan, each reference to a Lender’s Term Loan Commitment
shall refer to that Lender’s Pro Rata Share.


 


“Term
Loan Commitment Effective Date” means the date that the conditions
precedent set forth in Sections 4.1, 4.2 and 4.3 are
satisfied.


 


“Term
Loans” means the term loans extended by the Lenders to the Borrower
pursuant to Section 2.1.4.


 


23

















 


“Term
Note” is defined in Section 2.21(d).


 


“Trademarks”
shall have the meaning given to such term in the Security Agreement.


 


“Transferee”
is defined in Section 12.4.


 


“Turbine Collateral”
means each item of equipment identified as the subject of the sales
contemplated by (a) that certain Contract for Sale of Equipment & Services,
dated December 4, 2001, by and between MM I and General Electric Company, (b)
that certain sale agreement, dated December 3, 2001, between Northwestern
Generation I, LLC, and GE-Prolec, (c) that certain Agreement, dated as of May
31, 2000, by and between MM I (as assignee of LJM2-Turbine, LLC), and General
Electric Company and (d) that certain Bill of Sale, dated September 14, 2001,
from E-Next Generation LLC to MM I.


 


“Type”
means, with respect to any Advance, its nature as a Floating Rate Advance or a
Eurodollar Advance and with respect to any Loan, its nature as a Floating Rate
Loan or a Eurodollar Loan.


 


“UCC”
means the Uniform Commercial Code as in effect from time to time in the State
of New York or any other state the laws of which are required to be applied in
connection with the attachment, perfection or priority of, or remedies with
respect to, the Agent’s or any Secured Party’s Lien on the Collateral.


 


“Unfunded
Liabilities” means the amount (if any) by which the present value of
all vested and unvested accrued benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such Plans
using PBGC actuarial assumptions for single employer plan terminations.


 


“Unliquidated
Secured Obligations” means, at any time, any Secured Obligations (or
portion thereof) that are contingent in nature or unliquidated at such time,
including any Secured Obligation that is: (i) an obligation to reimburse a bank
for drawings not yet made under a letter of credit issued by it; (ii) any other
obligation (including any guarantee) that is contingent in nature at such time;
or (iii) an obligation to provide collateral to secure any of the foregoing
types of obligations.


 


“Unmatured
Default” means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.


 


“Unused
Commitment Fee” is defined in Section 2.10(a).


 


“U.S.”
means the United States of America.


 


“Wholly-Owned
Subsidiary” of a Person means any Subsidiary all of the outstanding
Capital Stock of which shall at the time be owned or controlled, directly or
indirectly, by such Person or one or more Wholly Owned Subsidiaries of such
Person, or by such Person and one or more Wholly Owned Subsidiaries of such
Person.


 


“Working Gas and Fuel
Inventory” means natural gas owned by the Borrower and held for sale by the
Borrower in the ordinary course of business.


 


The foregoing definitions
shall be equally applicable to both the singular and plural forms of the
defined terms.


 


24

















 


ARTICLE II


 


THE FACILITY


 


2.1                                 The Facility.  Each Lender severally agrees, on the terms
and conditions set forth in this Agreement, to (a) make Loans to the Borrower
as set forth below and (b) participate in Facility LCs issued upon the request
of the Borrower; provided  that, after giving effect to the making
of each such Loan and the issuance of each such Facility LC, such Lender’s
Credit Exposure shall not exceed its Commitment; provided  further,
that the Aggregate Credit Exposure shall not exceed the Aggregate Commitment in
effect from time to time. The LC Issuer will issue Facility LCs hereunder on the
terms and conditions set forth in Section 2.1.2. The Facility shall be
composed of Revolving Loans, Non-Ratable Loans, Facility LCs and Term Loans as
set forth below:


 


2.1.1                        Revolving Loans.


 


(a)                                  Amount. From and
including the Effective Date and prior to the Facility Termination Date, each
Revolving Lender severally agrees, on the terms and conditions set forth in
this Agreement, to make revolving loans (the “Revolving Loans”) to the
Borrower and participate in Facility LCs issued to the Borrower as set forth in
Section 2.1.2, in amounts not to exceed such Lender’s Pro Rata Share.  If any Advance of a Revolving Loan or
participation in a Facility LC would exceed Availability, the Revolving Lenders
will refuse to make or may otherwise restrict the making of Revolving Loans or
refuse to issue or otherwise restrict the issuance of Facility LCs as the
Required Revolving Lenders determine until such excess has been eliminated. The
Revolving Loans may consist of Floating Rate Advances or Eurodollar Advances, or
a combination thereof, selected by the Borrower in accordance with Sections
2.1.1(b) and 2.7. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Revolving Loans at any time prior to
the Facility Termination Date. The Commitments to extend credit under this Section
2.1.1(a) shall expire on the Facility Termination Date.


 


(b)                                 Borrowing Procedures.  The Borrower shall select the Type of
Advance and, in the case of each Eurodollar Advance, the Interest Period
applicable thereto, from time to time. The Borrower shall give the Agent
irrevocable notice (a “Borrowing Notice”) not later than 11:00 a.m.
(Chicago time) on the Borrowing Date of each Floating Rate Advance and three
Business Days before the Borrowing Date for each Eurodollar Advance, specifying
(in the form of Exhibit A for Eurodollar Advances): (1) the
Borrowing Date, which shall be a Business Day, of such Advance, (2) the
aggregate amount of such Advance, (3) the Type of Advance selected; provided
that, if the Borrower fails to specify the Type of Advance requested,
such request shall be deemed a request for a Floating Rate Advance; and (4) the
duration of the Interest Period if the Type of Advance requested is a
Eurodollar Advance; provided  that, if the Borrower fails to
select the duration of the Interest Period for the requested Eurodollar
Advance, the Borrower shall be deemed to have requested that such Eurodollar
Advance be made with an Interest Period of one month.


 


(c)                                  The Agent’s Election.
Promptly after receipt of a Borrowing Notice (or telephonic notice in lieu
thereof) of a requested Floating Rate Advance, the Agent shall elect in its
discretion to have the terms of Section 2.1.1(d) (pro rata advance by
all Revolving Lenders) or Section 2.1.3 (advance by Agent, in the form
of a Non-Ratable Loan, on behalf of the Revolving Lenders) apply to such
requested Advance.


 


25

















 


(d)                                 Pro Rata Advance.  Unless the Agent elects to have the terms of
Section 2.1.3 apply to a requested Floating Rate Advance or if a
requested Advance is for a Eurodollar Advance, then promptly after receipt of a
Borrowing Notice or telephonic notice in lieu thereof as permitted by Section
2.8, the Agent shall notify the Revolving Lenders by telecopy, telephone,
or e-mail of the requested Advance.  Not
later than noon (Chicago time) on each Borrowing Date, each Revolving Lender
shall make available its Revolving Loan in funds immediately available in
Chicago to the Agent and the Agent will make the funds so received from the
Revolving Lenders available to the Borrower at the Borrower’s Funding Account
as set forth in Section 2.5.


 


(e)                                  Special Limitations on Aggregate Revolving Exposure.  Notwithstanding
anything to the contrary contained in this Agreement or any other Loan
Document, the Borrower covenants and agrees that (i) until such time as (W) the
Borrower shall have satisfied the requirement to deliver a business plan as set
forth in Section 6.41(c), (X) the Borrower and the Required Lenders
shall have agreed on the EBITDAR financial covenant as contemplated by Section
6.29, (Y) the Loan Parties shall have satisfied the covenants set forth in Section
6.41(d) and (h) and (Z) the Agent shall have notified the Borrower
that it is satisfied with respect to its review of Lien search reports and Lien
perfection with respect to the Turbine Collateral, Aggregate Revolving Exposure
shall not exceed $20,000,000, (ii) until such time as (X) the conditions set
forth in clause (i) above have been satisfied and (Y) the Final Order is
entered by the Bankruptcy Court, Aggregate Revolving Exposure shall not exceed
$50,000,000 and (iii) until such time as (X) the conditions set forth in
clauses (i) and (ii) above have been satisfied, (Y) the Loan Parties shall have
obtained all regulatory approvals (if any) necessary to consummate the Facility
and to execute, deliver and perform their respective obligations under this
Agreement and each other Loan Document (including but not limited to approvals
from the relevant state public utility commissions) as determined by the Agent
and (Z) the Loan Parties shall have delivered opinions of counsel addressed to
the Agent and the Lenders and satisfactory in form and substance to the Agent
with respect to any governmental approvals or orders, the Aggregate Revolving
Exposure shall not exceed $85,000,000.


 


2.1.2                        Facility LCs.


 


(a)                                  Issuance.  The LC Issuer hereby agrees, on the terms
and conditions set forth in this Agreement, to issue standby and commercial
Letters of Credit (each, a “Facility LC”) and to renew, extend,
increase, decrease or otherwise modify Facility LCs (“Modify,” and each
such action a “Modification”), from time to time from and including the
Effective Date and prior to the Facility Termination Date upon the request and for
the account of the Borrower; provided  that, the maximum face
amount of the Facility LC to be issued or Modified does not exceed the lesser
of (i) $50,000,000 minus
the sum of (1) the aggregate undrawn amount of all outstanding Facility LCs at
such time and, without duplication, (2) the aggregate unpaid Reimbursement
Obligations with respect to all Facility LCs outstanding at such time and (ii)
Availability.  No Facility LC shall have
an expiry date later than the tenth (10th) Business Day prior to the Scheduled
Termination Date.


 


(b)                                 Participations.  Upon the issuance or Modification by the LC
Issuer of a Facility LC in accordance with this Section 2.1.2, the LC
Issuer shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Revolving Lender, and each
Revolving Lender shall be deemed, without further action by any party hereto,
to have unconditionally and irrevocably purchased from the LC Issuer, a


 


26

















 


participation in such Facility LC (and each
Modification thereof) and the related LC Obligations in proportion to its Pro
Rata Share.


 


(c)                                  Notice.  Subject to Section 2.1.2(a), the
Borrower shall give the LC Issuer notice prior to 11:00 a.m. (Chicago time) at
least three Business Days prior to the proposed date of issuance or
Modification of each Facility LC, specifying the beneficiary, the proposed date
of issuance (or Modification) and the expiry date of such Facility LC, and
describing the proposed terms of such Facility LC and the nature of the
transactions proposed to be supported thereby. 
Upon receipt of such notice, the LC Issuer shall promptly notify the
Agent, and the Agent shall promptly notify each Revolving Lender, of the
contents thereof and of the amount of such Revolving Lender’s participation in
such proposed Facility LC.  The issuance
or Modification by the LC Issuer of any Facility LC shall, in addition to the
conditions precedent set forth in Sections 4.1 and 4.3 (the
satisfaction of which the LC Issuer shall have no duty to ascertain), be
subject to the conditions precedent that such Facility LC shall be satisfactory
to the LC Issuer and that the Borrower shall have executed and delivered such
application agreement and/or such other instruments and agreements relating to
such Facility LC as the LC Issuer shall have reasonably requested (each, a “Facility
LC Application”).  In the event of
any conflict between the terms of this Agreement and the terms of any Facility
LC Application, the terms of this Agreement shall control.


 


(d)                                 Administration; Reimbursement by Revolving Lenders.  Upon receipt from
the beneficiary of any Facility LC of any demand for payment under such
Facility LC, the LC Issuer shall notify the Agent and the Agent shall promptly
notify the Borrower and each other Revolving Lender as to the amount to be paid
by the LC Issuer as a result of such demand and the proposed payment date (the
“LC Payment Date”).  The
responsibility of the LC Issuer to the Borrower and each Revolving Lender shall
be only to determine that the documents (including each demand for payment)
delivered under each Facility LC in connection with such presentment shall be
in conformity in all material respects with such Facility LC.  The LC Issuer shall endeavor to exercise the
same care in the issuance and administration of the Facility LCs as it does
with respect to letters of credit in which no participations are granted, it
being understood that in the absence of any gross negligence or willful misconduct
by the LC Issuer, each Revolving Lender shall be unconditionally and
irrevocably liable without regard to the occurrence of any Default or any
condition precedent whatsoever, to reimburse the LC Issuer on demand for (i)
such Revolving Lender’s Pro Rata Share of the amount of each payment made by
the LC Issuer under each Facility LC to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.1.2(e), plus (ii) interest on the foregoing
amount to be reimbursed by such Revolving Lender, for each day from the date of
the LC Issuer’s demand for such reimbursement (or, if such demand is made after
11:00 a.m. (Chicago time) on such date, from the next succeeding Business Day)
to the date on which such Revolving Lender pays the amount to be reimbursed by
it, at a rate of interest per annum equal to the Federal Funds Effective Rate
for the first three days and, thereafter, at a rate of interest equal to the
rate applicable to Floating Rate Advances.


 


(e)                                  Reimbursement by Borrower.  The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on or before the
applicable LC Payment Date for any amounts to be paid by the LC Issuer upon any
drawing under any Facility LC, without presentment, demand, protest or other formalities
of any kind; provided  that, neither the Borrower nor any
Revolving Lender shall hereby be precluded from asserting any claim for direct
(but not consequential) damages suffered by the Borrower or such


 


27

















 


Revolving Lender to the extent, but only to the
extent, caused by (i) the willful misconduct or gross negligence of the LC
Issuer in determining whether a request presented under any Facility LC issued
by it complied with the terms of such Facility LC or (ii) the LC Issuer’s
failure to pay under any Facility LC issued by it after the presentation to it
of a request strictly complying with the terms and conditions of such Facility
LC.  All such amounts paid by the LC
Issuer and remaining unpaid by the Borrower shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to (x) the rate
applicable to Floating Rate Advances for such day if such day falls on or
before the applicable LC Payment Date and (y) the sum of 2% plus the rate applicable to Floating
Rate Advances for such day if such day falls after such LC Payment Date.  The LC Issuer will pay to each Revolving
Lender ratably in accordance with its Pro Rata Share all amounts received by it
from the Borrower for application in payment, in whole or in part, of the
Reimbursement Obligation in respect of any Facility LC issued by the LC Issuer,
but only to the extent such Revolving Lender has made payment to the LC Issuer
in respect of such Facility LC pursuant to Section 2.1.2(d).  Subject to the terms and conditions of this
Agreement (including without limitation the submission of a Borrowing Notice in
compliance with Section 2.1.1(b) and the satisfaction of the applicable
conditions precedent set forth in Section 4.1 and 4.3), the
Borrower may request an Advance hereunder for the purpose of satisfying any
Reimbursement Obligation.


 


(f)                                    Obligations Absolute.  The Borrower’s obligations under this Section
2.1.2 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the LC Issuer, any Revolving Lender or
any beneficiary of a Facility LC.  The
Borrower further agrees with the LC Issuer and the Revolving Lenders that the
LC Issuer and the Revolving Lenders shall not be responsible for, and the
Borrower’s Reimbursement Obligation in respect of any Facility LC shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even if such documents should in fact prove to be in
any or all respects invalid, fraudulent or forged, or any dispute between or
among the Borrower, any of its Affiliates, the beneficiary of any Facility LC
or any financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any of
its Affiliates against the beneficiary of any Facility LC or any such
transferee.  The LC Issuer shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Facility LC.  The Borrower agrees
that any action taken or omitted by the LC Issuer or any Revolving Lender under
or in connection with each Facility LC and the related drafts and documents, if
done without gross negligence or willful misconduct, shall be binding upon the
Borrower and shall not put the LC Issuer or any Revolving Lender under any
liability to the Borrower.  Nothing in
this Section 2.1.2(f) is intended to limit the right of the Borrower to
make a claim against the LC Issuer for damages as contemplated by the proviso
to the first sentence of Section 2.1.2(e).


 


(g)                                 Actions of LC Issuer.  The LC Issuer shall be entitled to rely, and
shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other document
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the LC Issuer.  The LC Issuer shall be fully justified in
failing or refusing to take any action under this


 


28

















 


Agreement unless it shall first have received such
advice or concurrence of the Required Revolving Lenders as it reasonably deems
appropriate or it shall first be indemnified to its reasonable satisfaction by
the Revolving Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action.
Notwithstanding any other provision of this Section 2.1.2, the LC Issuer
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the Required Revolving
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Revolving Lenders and any future holders of a
participation in any Facility LC.


 


(h)                                 Indemnification.  The Borrower hereby agrees to indemnify and
hold harmless each Revolving Lender, the LC Issuer and the Agent, and their
respective directors, officers, agents and employees, from and against any and
all claims and damages, losses, liabilities, costs or expenses which such
Revolving Lender, the LC Issuer or the Agent may incur (or which may be claimed
against such Revolving Lender, the LC Issuer or the Agent by any Person
whatsoever) by reason of or in connection with the issuance, execution and
delivery or transfer of or payment or failure to pay under any Facility LC or
any actual or proposed use of any Facility LC, including, without limitation,
any claims, damages, losses, liabilities, costs or expenses which the LC Issuer
may incur by reason of or in connection with (i) the failure of any other
Revolving Lender to fulfill or comply with its obligations to the LC Issuer
hereunder (but nothing herein contained shall affect any rights the Borrower
may have against any defaulting Revolving Lender) or (ii) by reason of or on
account of the LC Issuer issuing any Facility LC which specifies that the term
“Beneficiary” included therein includes any successor by operation of law of
the named Beneficiary, but which Facility LC does not require that any drawing
by any such successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to the LC Issuer, evidencing the appointment of such successor
Beneficiary; provided  that, the Borrower shall not be required to
indemnify any Revolving Lender, the LC Issuer or the Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (x) the willful misconduct or gross negligence of the LC
Issuer in determining whether a request presented under any Facility LC
complied with the terms of such Facility LC or (y) the LC Issuer’s failure to
pay under any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC. Nothing in this Section
2.1.2(h) is intended to limit the obligations of the Borrower under any
other provision of this Agreement.


 


(i)                                     Revolving Lenders’ Indemnification. Each Revolving Lender shall, ratably in accordance with its
Pro Rata Share, indemnify the LC Issuer, its Affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees’ gross negligence or willful misconduct or the LC
Issuer’s failure to pay under any Facility LC after the presentation to it of a
request strictly complying with the terms and conditions of the Facility LC)
that such indemnitees may suffer or incur in connection with this Section
2.1.2 or any action taken or omitted by such indemnitees hereunder.


 


(j)                                     Facility LC Collateral Account.  The Borrower agrees that it will, during the
continuance of an Unmatured Default or a Default, upon the request of the Agent
or the Required Revolving Lenders and until the final expiration date of any
Facility LC and thereafter as long as any amount is payable to the LC Issuer or
the Revolving Lenders in respect of any Facility LC, maintain a special
collateral account pursuant to arrangements


 


29

















 


satisfactory to the Agent (the “Facility LC
Collateral Account”) at the Agent’s office at the address specified
pursuant to Article XIII, in the name of the Borrower but under the sole
dominion and control of the Agent, for the benefit of the Secured Parties and
in which the Borrower shall have no interest other than as set forth in Section
8.1.  Nothing in this Section 2.1.2(j)
shall either obligate the Agent to require the Borrower to deposit any funds in
the Facility LC Collateral Account or limit the right of the Agent to release
any funds held in the Facility LC Collateral Account in each case other than as
required by Section 8.1.  The
Agent will invest any funds on deposit from time to time in the Facility LC
Collateral Account in certificates of deposit of Bank One having a maturity not
exceeding thirty days.


 


(k)                                  Rights as a Lender.  In its capacity as a Lender, the LC Issuer
shall have the same rights and obligations as any other Lender.


 


(l)                                     Termination of the Facility.  If, notwithstanding the provisions of this Section 2.1.2,
any Facility LC is outstanding upon the earlier of (x) the termination of this
Agreement and (y) the Facility Termination Date, then upon such termination the
Borrower shall deposit with the Agent, for the benefit of the Agent and the Secured
Parties, with respect to all LC Obligations, as the Agent in its discretion
shall specify, either (i) a standby letter of credit (a “Supporting Letter
of Credit”), in form and substance satisfactory to the Agent, issued by an
issuer satisfactory to the Agent, in a stated amount, equal to 105% of the
difference of (x) the amount of LC Obligations at such time, less (y) the
amount on deposit in the Facility LC Collateral Account at such time which is
free and clear of all rights and claims of third parties and has not been
applied against the Obligations (such difference, the “Collateral Shortfall
Amount”), under which Supporting Letter of Credit the Agent is entitled to
draw amounts necessary to reimburse the Agent, the LC Issuer and the Revolving
Lenders for payments to be made by the Agent, the LC Issuer and the Lenders
under any such Facility LC and any fees and expenses associated with such
Facility LC, or (ii) cash, in immediately available funds, in an amount equal
to 105% of the Collateral Shortfall Amount to be held in the Facility LC
Collateral Account.  Such Supporting
Letter of Credit or deposit of cash shall be held by the Agent, for the benefit
of the Secured Parties, as security for, and to provide for the payment of, the
aggregate undrawn amount of such Facility LC remaining outstanding.


 


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2.1.3                        Non-Ratable
Loans. Subject to the
restrictions set forth in Section 2.1.1(a), the Agent may elect to have
the terms of this Section 2.1.3 apply to any requested Floating Rate
Advance and Bank One shall thereafter make an Advance, on behalf of the
Revolving Lenders and in the amount requested, available to the Borrower on the
applicable Borrowing Date by transferring same day funds to the Funding Account.  Each Advance made solely by the Agent
pursuant to this Section 2.1.3 is referred to in this Agreement as a “Non-Ratable
Loan,” and such Advances are collectively referred to as the “Non-Ratable
Loans.”  Each Non-Ratable Loan shall
be subject to all the terms and conditions applicable to other Advances funded
by the Revolving Lenders, except that all payments thereon shall be payable to
Bank One solely for its own account. 
The aggregate amount of Non-Ratable Loans outstanding at any time shall
not exceed $5,000,000.  The Agent shall
not make any Non-Ratable Loan if the requested Non-Ratable Loan exceeds
Availability (before giving effect to such Non-Ratable Loan).  Non-Ratable Loans may be made even if a
Default or Unmatured Default exists, but may not be made if the other
conditions precedent set forth in Section 4.3 have not been
satisfied.  The Non-Ratable Loans shall
be secured by the Liens granted to the Agent in and to the Collateral and shall
constitute Obligations hereunder.  All
Non-Ratable Loans shall be Floating Rate Advances and are subject to the
settlement provisions set forth in Section 2.19.


 


2.1.4                        Term Loans.


 


(a)                                  Amounts of Term Loans.  Each Term Lender severally agrees to make a
term loan (any such term loan being referred to as a “Term Loan” and
such term loans being referred to collectively as the “Term Loans”) to
the Borrower on the Term Loan Commitment Effective Date upon the satisfaction
of the conditions precedent set forth in Sections 4.1, 4.2 and 4.3,
in an amount not to exceed such Term Lender’s Pro Rata Share of the Term Loan
Commitment; provided, however, that if the Term Loan Commitment
Effective Date shall not have occurred on or before the date which is
forty-five days after the Petition Date, then the obligation of each Term
Lender to extend Term Loans hereunder shall immediately terminate and the Term
Loan Commitment of each Term Lender shall be automatically reduced to $0.  The Term Loans shall initially be Floating
Rate Advances but may be converted into Eurodollar Advances in accordance with Section
2.7.  All Term Loan proceeds shall
be used to repay the amount of the CSFB Loan outstanding on the Term Loan
Commitment Effective Date and for no other purpose.  In addition, in no event shall the Term Loan Commitment Effective
Date be deemed to have occurred unless the Borrower shall have provided the
Agent with a written notice on or before the date which is thirty days after
the Petition Date stating its intention that, upon satisfaction of the
applicable conditions precedent, the Borrower desires to have the Term Loan
Commitment Effective Date occur.


 


(b)                                 Funding by Lenders.  Each Term Lender shall make the amount of
such Term Lender’s Term Loan available to the Agent in immediately available
funds at Agent’s designated account, not later than noon (Chicago time) on the
Term Loan Commitment Effective Date. 
After the Agent’s receipt of the proceeds of such Term Loans from the
Lenders, the Borrower shall instruct the Agent to transfer the proceeds of the
Term Loan in immediately available funds (up to the amount required to repay in
full the CSFB Loan) as required by the CSFB Credit Agreement to repay in full
the CSFB Loan.


 


(c)                                  Term Loan Payment; No Reborrowing. The entire principal balance of the Term Loans shall be
payable on the Facility Termination Date. 
Such payment shall be payable to the Agent for the account of the
applicable Term Lender.  Payments or
prepayments of the Term Loans may not be reborrowed.


 


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2.2                                 Ratable Loans; Risk Participation.  Except as otherwise provided below, each
Advance made in connection with a Revolving Loan or a Term Loan shall consist
of Loans made by each Lender in an amount equal to such Lender’s Pro Rata
Share.  Upon the making of an Advance by
the Agent in connection with a Non-Ratable Loan (whether before or after the
occurrence of a Default or an Unmatured Default and regardless of whether the
Agent has requested a Settlement with respect to such Non-Ratable Loan), the
Agent shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Revolving Lender and each
Revolving Lender shall be deemed, without further action by any party hereto,
to have unconditionally and irrevocably purchased from the Agent, without
recourse or warranty, an undivided interest and participation in such
Non-Ratable Loan in proportion to its Pro Rata Share of the Revolving
Commitment. From and after the date, if any, on which any Lender is required to
fund its participation in any Non-Ratable Loan purchased hereunder, the Agent
shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all
payments of principal and interest and all proceeds of Collateral received by
the Agent in respect of such Loan.


 


2.3                                 Payment of the Obligations. The Borrower
shall repay the outstanding principal balance of the Loans, together with all
other Obligations, including all accrued and unpaid interest thereon, on the
Facility Termination Date.


 


2.4                                 Minimum Amount of Each Advance. Each
Eurodollar Advance shall be in the minimum amount of $5,000,000 and in
multiples of $1,000,000 if in excess thereof. 
Floating Rate Advances may be in any amount.


 


2.5                                 Funding Account.  The Borrower shall deliver to the Agent, on the Effective Date, a
notice setting forth the deposit account of the Borrower (the “Funding
Account”) to which the Agent is authorized by the Borrower to transfer the
proceeds of any Advances requested pursuant to this Agreement.  The Borrower may designate a replacement
Funding Account from time to time by written notice to the Agent.  Any designation by the Borrower of the
Funding Account must be reasonably acceptable to the Agent.


 


2.6                                 Reliance Upon Authority; No
Liability.  The Agent is entitled to rely conclusively
on any individual’s request for Advances hereunder, so long as the proceeds
thereof are to be transferred to the Funding Account.  The Agent shall have no duty to verify the identity of any
individual representing himself or herself as a person authorized by the
Borrower to make such requests on its behalf. 
The Agent shall not incur any liability to the Borrower as a result of
acting upon any notice referred to in Section 2.1 which the Agent
reasonably believes to have been given by an officer or other Person duly
authorized by the Borrower to request Advances on its behalf or for otherwise
acting under this Agreement.  The
crediting of Advances to the Funding Account shall conclusively establish the
obligation of the Borrower to repay such Advances as provided herein.


 


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2.7                                 Conversion and Continuation
of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurodollar Advances pursuant to this Section
2.7 or are repaid in accordance with this Agreement.  Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Advance shall be automatically
converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or
was repaid in accordance with this Agreement or (y) the Borrower shall have
given the Agent a Conversion/Continuation Notice (as defined below) requesting
that, at the end of such Interest Period, such Eurodollar Advance continue as a
Eurodollar Advance for the same or another Interest Period.  Subject to the terms of Section 2.4,
the Borrower may elect from time to time to convert all or any part of a
Floating Rate Advance into a Eurodollar Advance.  The Borrower shall give the Agent irrevocable notice in the form
of Exhibit B (a “Conversion/Continuation Notice”) of each
conversion of a Floating Rate Advance into a Eurodollar Advance or continuation
of a Eurodollar Advance not later than 11:00 a.m. (Chicago time) at least three
Business Days prior to the date of the requested conversion or continuation,
specifying (i) the requested date, which shall be a Business Day, of such
conversion or continuation, (ii) the aggregate amount and Type of the Advance
which is to be converted or continued and (iii) the amount of such Advance
which is to be converted into or continued as a Eurodollar Advance and the
duration of the Interest Period applicable thereto.


 


2.8                                 Telephonic Notices.  The Borrower hereby authorizes the Lenders and the Agent to
extend, convert or continue Advances, effect selections of Types of Advances
and to transfer funds based on telephonic notices made by any person or persons
the Agent or any Lender in good faith believes to be acting on behalf of the
Borrower, it being understood that the foregoing authorization is specifically
intended to allow Borrowing Notices and Conversion/Continuation Notices to be
given telephonically.  The Borrower
agrees to deliver promptly to the Agent a written confirmation, if such
confirmation is requested by the Agent or any Lender, of each telephonic notice
signed by an Authorized Officer. If the written confirmation differs in any
material respect from the action taken by the Agent and the Lenders, the
records of the Agent and the Lenders shall govern absent manifest error.


 


2.9                                 Notification of Advances,
Interest Rates, Prepayments and Commitment Reductions.  Promptly after receipt thereof, the Agent will notify each Lender
of the contents of each Borrowing Notice, Conversion/Continuation Notice,
repayment notice and Commitment reduction notice received by it hereunder.  Promptly after notice from the LC Issuer,
the Agent will notify each Revolving Lender of the contents of each request for
issuance of a Facility LC hereunder or any Modification.  The Agent will notify each Lender of the
interest rate applicable to each Eurodollar Advance promptly upon determination
of such interest rate and will give each Lender prompt notice of each change in
the Alternate Base Rate.


 


2.10                           Fees.


 


(a)                                  Unused Commitment Fee.  The Borrower agrees to pay to the Agent, for
the account of each Revolving Lender in accordance with such Lender’s Pro Rata
Share, an unused commitment fee at a per annum rate equal to 0.50% on the
average daily Available Revolving Commitment, payable on each Payment Date
hereafter and on the Facility Termination Date (the “Unused Commitment Fee”).


 


(b)                                 LC Fees.  The Borrower shall pay to the Agent, for the
account of the Revolving Lenders ratably in accordance with their respective
Pro Rata Shares, a letter of credit fee at a per annum rate equal to 3.00% on
the average daily undrawn stated amount under each Facility LC, such fee to be
payable in arrears on each Payment Date (the “LC Fee”).  The Borrower shall also pay to the LC Issuer
for its own account (x) at the time of issuance of


 


33

















 


each Facility LC, a fronting fee of 0.25% of the face
amount of the Facility LC, and (y) documentary and processing charges in
connection with the issuance or Modification of and draws under Facility LCs in
accordance with the LC Issuer’s standard schedule for such charges as in effect
from time to time.


 


(c)                                  Agent and Arranger Fees.
The Borrower agrees to pay to the Agent and the Arranger such additional fees
as are specified in the fee letter dated as of the date hereof, among the
Agent, the Arranger and the Borrower (the “Fee Letter”).


 


2.11                           Interest Rates.  Each Floating Rate Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.7,
to but excluding the date it is paid or is converted into a Eurodollar Advance
pursuant to Section 2.7, at a rate per annum equal to the Floating Rate
for such day.  Changes in the rate of
interest on that portion of any Advance maintained as a Floating Rate Advance
will take effect simultaneously with each change in the Alternate Base
Rate.  Each Eurodollar Advance shall
bear interest on the outstanding principal amount thereof from and including
the first day of the Interest Period applicable thereto to (but not including)
the last day of such Interest Period at the interest rate determined by the
Agent as applicable to such Eurodollar Advance based upon the Borrower’s
selections under Sections 2.1.1 and 2.7 and otherwise in
accordance with the terms hereof.  No Interest
Period may end after the Facility Termination Date.  If at any time Loans are outstanding with respect to which the
Borrower has not delivered a notice to the Agent specifying the basis for
determining the interest rate applicable thereto, those Loans shall bear
interest at the Floating Rate.


 


2.12                           Eurodollar Advances Post
Default; Default Rates.  Notwithstanding anything to the contrary
contained hereunder, during the continuance of a Default or Unmatured Default
the Agent or the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.3 requiring unanimous consent
of the Lenders to reductions in interest rates), declare that no Advance may be
made as, converted into or continued as a Eurodollar Advance.  During the continuance of a Default, the
Agent or the Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.3 requiring unanimous consent
of the Lenders to reductions in interest rates), declare that (i) each
Eurodollar Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such Interest Period plus
2% per annum, (ii) each Floating Rate Advance shall bear interest at a rate per
annum equal to the Floating Rate in effect from time to time plus 2% per annum and (iii) the LC Fee
shall be increased by 2% per annum.


 


2.13                           Interest Payment Dates; Interest and Fee
Basis.  Interest accrued on each Floating Rate
Advance shall be payable on each Payment Date, commencing with the first such
date to occur after the date hereof and at maturity.  Interest accrued on each Eurodollar Advance shall be payable on
the last day of its applicable Interest Period, on any date on which the
Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at
maturity.  Interest accrued on each
Eurodollar Advance having an Interest Period longer than three months shall
also be payable on the last day of each three month interval during such
Interest Period.  Interest on all
Advances, unused commitment fees and LC Fees shall be calculated for actual
days elapsed on the basis of a 360 day year. 
Interest shall be payable for the day an Advance is made but not for the
day of any payment on the amount paid if payment is received prior to noon
(local time) at the place of payment. 
If any payment of principal of or interest on an Advance shall become
due on a day which is not a Business Day, such payment shall be made on the
next succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment. After giving effect to any Loan, Advance,


 


34

















 


continuation,
or conversion of any Eurodollar Rate Loan, there may not be more than five
different Interest Periods in effect hereunder.


 


2.14                           Voluntary Prepayments.  The Borrower may prepay all or any portion of the outstanding
Floating Rate Advances at any time without penalty or premium upon prior
written notice in a minimum amount of $500,000.  The Borrower may also from time to time prepay, subject to the
payment of any funding indemnification amounts required by Section 3.4
but without penalty or premium, all outstanding Eurodollar Advances, or, in a
minimum aggregate amount of $5,000,000 or any integral multiple of $1,000,000
in excess thereof, any portion of the outstanding Eurodollar Advances upon
three Business Days’ prior notice to the Agent.


 


2.15                           Mandatory Prepayments.


 


(a)                                  Borrowing Base Compliance.  The Borrower shall immediately repay
Revolving Loans, Reimbursement Obligations, Non-Ratable Loans or Term Loans if
at any time the Aggregate Credit Exposure exceeds the lesser of (i) the
Aggregate Commitment and (ii) the Borrowing Base, to the extent required to
eliminate such excess.  If any such
excess remains after repayment in full of all outstanding Loans, Reimbursement
Obligations and Non-Ratable Loans, the Borrower shall provide cash collateral
or a Supporting Letter of Credit for the LC Obligations in the manner set forth
in Section 2.1.2(l) to the extent required to eliminate such excess.


 


(b)                                 Sale of Assets.  Immediately upon receipt by the Borrower or
any Subsidiary (other than Excluded Subsidiaries) of the Net Cash Proceeds of
any asset disposition, the Borrower shall prepay the Obligations in an amount
equal to all such Net Cash Proceeds.  Any such prepayment shall be applied first, to repay Term
Loans, second, to pay the principal of the Non-Ratable Loans, third,
to pay the principal of the Revolving Loans without a concomitant reduction in
the Revolving Commitment and fourth, if any Unmatured Default or Default
shall have occurred and be continuing, to cash collateralize outstanding
Facility LCs.


 


(c)                                  Issuance of Debt or Equity; Receipt of Other Proceeds.  If the Borrower or
any Subsidiary (other than Excluded Subsidiaries) (i) issues Capital Stock to
any Person, (ii) issues Indebtedness (other than Indebtedness permitted by Section
6.17, it being understood that compliance with this Section 2.15(c)
shall not be deemed to be a waiver of any other provision or covenant contained
herein), (iii) receives any dividend or distribution from any Person (other
than any Loan Party) or (iv) receives any proceeds in respect of any Investment
(other than (x) Cash Equivalent Investments and (y) collection of Accounts
generated in the ordinary course of business), no later than the Business Day
following the date of receipt of any Net Cash Proceeds of such issuance or
receipt of such dividend, distribution, loan, advance or other proceeds, the
Borrower shall prepay the Obligations in an amount equal to all such Net Cash
Proceeds, dividends, distributions, loans, advances or other proceeds. Any such
prepayment shall be applied first, to repay Term Loans, second,
to pay the principal of the Non-Ratable Loans, third, to pay the
principal of the Revolving Loans without a concomitant reduction in the
Revolving Commitment and fourth, if any Unmatured Default or Default
shall have occurred and be continuing, to cash collateralize outstanding
Facility LCs.


 


(d)                                 Insurance/Condemnation Proceeds.  Any insurance or
condemnation proceeds to be applied to the Obligations in accordance with Section
6.7(c) shall be applied as follows: (i) insurance proceeds from
casualties or losses to cash shall be applied, first, to the Non-Ratable


 


35

















 


Loans, second, to the Revolving Loans without a
concomitant reduction in the Revolving Commitment, third, to cash
collateralize outstanding Facility LCs and fourth, to repay Term Loans;
and (ii) insurance or condemnation proceeds (net of amounts payable to holders
of senior Liens on the asset(s) subject to casualty or condemnation (to the
extent such Liens constitute Permitted Liens hereunder), if any, and net of
amounts payable to holders of equal Liens on the asset(s) subject to casualty
or condemnation to the extent of such Lien holder’s applicable pro rata share
in such proceeds (to the extent such Liens constitute Permitted Liens
hereunder), if any) from casualties or losses to Equipment, Fixtures, real
Property or other assets (other than cash) shall be applied first, to
repay Term Loans, second, to pay the principal of the Non-Ratable Loans,
third, to pay the principal of the Revolving Loans with a concomitant
reduction in the Revolving Commitment and fourth, if any Unmatured
Default or Default shall have occurred and be continuing, to cash collateralize
outstanding Facility LCs.


 


(e)                                  General.  Without in any way limiting the foregoing,
immediately upon receipt by any Loan Party of proceeds of any sale of any
Collateral, the Borrower shall cause such Loan Party to deliver such proceeds
to the Agent, or deposit such proceeds in a deposit account subject to a
Deposit Account Control Agreement.  All
of such proceeds shall be applied as set forth above or otherwise as provided
in Section 2.18.  Nothing in this
Section 2.15 shall be construed to constitute Agent’s or any Lender’s
consent to any transaction that is not permitted by other provisions of this
Agreement or the other Loan Documents.


 


2.16                           Termination of the Facility; Reduction of
Commitments.


 


(a)                                  Without limiting Section 2.3 or Section 8.1 or
any other provision of this Agreement, (i) the Aggregate Commitments shall
expire on the Facility Termination Date and (ii) the Aggregate Credit Exposure
and all other unpaid Obligations shall be paid in full by the Borrower on the
Facility Termination Date.


 


(b)                                 The Borrower may terminate the Commitments in full upon at
least 10 Business Days’ prior written notice thereof to the Agent and the
Lenders, with such termination to be effective upon (i) the payment in full of
all outstanding Loans, together with accrued and unpaid interest thereon, (ii)
the cancellation and return of all outstanding Facility LCs (or alternatively,
with respect to each such Facility LC, the furnishing to the Agent of a cash
deposit or Supporting Letter of Credit as required by Section 2.1.2(l)),
(iii) the payment in full of all reimbursable expenses and other Obligations
together with accrued and unpaid interest thereon and (iv) the payment in full
of any amount due under Section 3.4.


 


(c)                                  Upon at least two Business Days’ prior written notice to the
Agent, the Borrower may at any time and from time to time permanently reduce,
in part but not in full, the Revolving Commitment.  Each such partial reduction of the Revolving Commitments shall be
in the principal amount of $5,000,000 or any integral multiple thereof.  Simultaneously with each reduction or
termination of the Revolving Commitments, the Borrower shall pay to the Agent
for the account of each Revolving Lender the Unused Commitment Fee accrued and
unpaid on the amount of the Revolving Commitment of such Revolving Lender so
terminated or reduced through the date thereof.  Any reduction of the Revolving Commitment pursuant to this Section
2.16(c) shall be applied pro rata to reduce the Commitment of each Lender.


 


36

















 


2.17                           Method of Payment.


 


(a)                                  All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately available funds to
the Agent at the Agent’s address specified pursuant to Article XIII, or
at any other Lending Installation of the Agent specified in writing by the
Agent to the Borrower, by noon (local time) on the date when due and shall be
applied ratably by the Agent among the Lenders. Any payment received by the
Agent after such time shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to accrue.  Each payment delivered to the Agent for the
account of any Lender shall be delivered promptly by the Agent to such Lender
in the same type of funds that the Agent received at its address specified
pursuant to Article XIII or at any Lending Installation specified in a
notice received by the Agent from such Lender.


 


(b)                                 At the election of the Agent, all payments of principal,
interest, reimbursement obligations in connection with Facility LCs, fees,
premiums, reimbursable expenses (including, without limitation, all
reimbursement for fees and expenses pursuant to Section 9.6), and other
sums payable under the Loan Documents, may be paid from the proceeds of
Advances made hereunder whether made following a request by the Borrower
pursuant to Section 2.1 or a deemed request as provided in this Section
2.17 or may be deducted from the Funding Account or any other deposit
account of the Borrower maintained with the Agent.  The Borrower hereby irrevocably authorizes (i) the Agent to make
an Advance for the purpose of paying each payment of principal, interest and
fees as it becomes due hereunder or any other amount due under the Loan
Documents and agrees that all such amounts charged shall constitute Loans
(including Non-Ratable Loans) and that all such Advances shall be deemed to
have been requested pursuant to Section 2.1 and (ii) the Agent to charge
the Funding Account or any other deposit account of the Borrower maintained
with Bank One for each payment of principal, interest and fees as it becomes
due hereunder or any other amount due under the Loan Documents.


 


2.18                           Apportionment, Application,
and Reversal of Payments.  Except as otherwise required pursuant to Section
2.19, principal and interest payments shall be apportioned ratably among
the Lenders as set forth in this Article II and payments of the fees
shall, as applicable, be apportioned ratably among the Lenders, except for fees
payable solely to the Agent or the LC Issuer and except as provided in Section
2.10(c).  All payments shall be
remitted to the Agent and all such payments not relating to principal or interest
of specific Loans or not constituting payment of specific fees as specified by
the Borrower, and all proceeds of any Collateral received by the Agent, shall
be applied, ratably, subject to the provisions of this Agreement, first,
to pay any fees, indemnities, or expense reimbursements including amounts then
due to the Agent from the Borrower (other than in connection with Banking
Services or Rate Management Obligations), second, to pay any fees or
expense reimbursements then due to the Lenders from the Borrower (other than in
connection with Banking Services or Rate Management Obligations), third,
to interest then due and payable on the Term Loans, fourth, to prepay
Term Loans, fifth, to pay interest due in respect of the Non-Ratable
Loans, sixth, to pay interest due in respect of the Revolving Loans
(other than Non-Ratable Loans), seventh, to pay or prepay principal of
the Non-Ratable Loans, eighth, to pay or prepay principal of the
Revolving Loans (other than Non-Ratable Loans) and unpaid reimbursement
obligations in respect of Facility LCs, ninth, to pay an amount to the
Agent equal to one hundred five percent (105%) of the aggregate undrawn face
amount of all outstanding Facility LCs and the aggregate amount of any unpaid
reimbursement obligations in respect of Facility LCs, to be held as cash
collateral for such Obligations, tenth, to payment of any amounts owing
with respect to Banking Services and Rate Management Obligations owed by a Loan
Party to Bank One or its Affiliates and


 


37

















 


eleventh, to the
payment of any other Secured Obligation due to the Agent or any Secured Party
by the Borrower.  Notwithstanding
anything to the contrary contained in this Agreement, unless so directed by the
Borrower, or unless a Default is in existence, neither the Agent nor any Lender
shall apply any payment which it receives to any Eurodollar Loan, except (a) on
the expiration date of the Interest Period applicable to any such Eurodollar
Loan or (b) in the event, and only to the extent, that there are no outstanding
Floating Rate Loans and, in any event, the Borrower shall pay the Eurodollar
breakage losses in accordance with Section 3.4.  The Agent and the Lenders shall have the
continuing and exclusive right to apply and reverse and reapply any and all
such proceeds and payments to any portion of the Secured Obligations.


 


2.19                           Settlement.  Each Revolving Lender’s funded portion of
the Loans is intended by the Revolving Lenders to be equal at all times to such
Revolving Lender’s Pro Rata Share of the outstanding Loans.  Notwithstanding such agreement, the Agent,
Bank One, and the Lenders agree (which agreement shall not be for the benefit
of or enforceable by the Loan Parties) that in order to facilitate the
administration of this Agreement and the other Loan Documents, settlement among
them as to the Loans, including the Non-Ratable Loans shall take place on a
periodic basis as follows.  The Agent
shall request settlement (a “Settlement”) with the Lenders on at least a
weekly basis, or on a more frequent basis at the Agent’s election, by notifying
the Lenders of such requested Settlement by telecopy, telephone, or e-mail no
later than 12:00 noon (Chicago, Illinois time) on the date of such requested
Settlement (the “Settlement Date”). 
Each Revolving Lender (other than the Agent, in the case of the
Non-Ratable Loans) shall transfer the amount of such Revolving Lender’s Pro
Rata Share of the outstanding principal amount of the applicable Loan with
respect to which Settlement is requested to the Agent, to such account of the
Agent as the Agent may designate, not later than 2:00 p.m. (Chicago, Illinois
time), on the Settlement Date applicable thereto.  Settlements may occur during the existence of a Default or an
Unmatured Default and whether or not the applicable conditions precedent set
forth in Section 4.3 have then been satisfied.  Such amounts transferred to the Agent shall be applied against
the amounts of the applicable Loan and, together with Bank One’s Pro Rata Share
of such Non-Ratable Loan, shall constitute Revolving Loans of such Lenders,
respectively.  If any such amount is not
transferred to the Agent by any Lender on the Settlement Date applicable
thereto, the Agent shall be entitled to recover such amount on demand from such
Lender together with interest thereon as specified in Section 2.23.


 


2.20                           Indemnity for Returned Payments.  If after receipt of any payment which is applied to the payment
of all or any part of the Obligations, the Agent or any Lender is for any
reason compelled to surrender such payment or proceeds to any Person because
such payment or application of proceeds is invalidated, declared fraudulent,
set aside, determined to be void or voidable as a preference, impermissible
setoff, or a diversion of trust funds, or for any other reason, then the
Obligations or part thereof intended to be satisfied shall be revived and
continued and this Agreement shall continue in full force as if such payment or
proceeds had not been received by the Agent or such Lender and the Borrower
shall be liable to pay to the Agent and the Lenders, and the Borrower hereby
indemnifies the Agent and the Lenders and holds the Agent and the Lenders
harmless for the amount of such payment or proceeds surrendered.  The provisions of this Section 2.20
shall be and remain effective notwithstanding any contrary action which may
have been taken by the Agent or any Lender in reliance upon such payment or
application of proceeds, and any such contrary action so taken shall be without
prejudice to the Agent’s and the Lenders’ rights under this Agreement and shall
be deemed to have been conditioned upon such payment or application of proceeds
having become final and irrevocable. 
The provisions of this Section 2.20 shall survive the termination
of this Agreement.


 


2.21                           Noteless Agreement; Evidence
of Indebtedness.


 


(a)                                  Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan


 


38

















 


made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.


 


(b)                                 The Agent shall also maintain accounts in which it will
record (i) the amount of each Loan extended hereunder, the Type thereof and the
Interest Period with respect thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder, (iii) the original stated amount of each Facility LC and the
amount of LC Obligations outstanding at any time and (iv) the amount of any sum
received by the Agent hereunder from the Borrower and each Lender’s share
thereof.


 


(c)                                  The entries maintained in the accounts maintained pursuant to
paragraphs (a) and (b) above shall be prima  facie evidence of the
existence and amounts of the Obligations therein recorded; provided  however,
that the failure of the Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.


 


(d)                                 Any Lender may request that its Revolving Loans be evidenced
by a promissory note in substantially the form of Exhibit C-1 (a “Revolving
Note”) and that its Term Loans be evidenced by a promissory note in
substantially the form of Exhibit C-2 attached hereto (a “Term Note”).  In such event, the Borrower shall prepare,
execute and deliver to such Lender such Note payable to the order of such
Lender.  Thereafter, the Revolving Loans
evidenced by such Revolving Note or the Term Loans evidenced by such Term Note
and interest thereon shall at all times (prior to any assignment pursuant to Section
12.3) be represented by one or more Notes payable to the order of the payee
named therein, except to the extent that any such Lender subsequently returns
any such Note for cancellation and requests that such Revolving Loans or Term
Loans once again be evidenced as described in Sections 2.21(a) and (b).


 


2.22                           Lending Installations.  Each Lender may book its Loans and its participation in any LC
Obligations and the LC Issuer may book the Facility LCs at any Lending
Installation selected by such Lender or the LC Issuer, as the case may be, and
may change its Lending Installation from time to time.  All terms of this Agreement shall apply to
any such Lending Installation and the Loans, Facility LCs, participations in LC
Obligations and any Notes issued hereunder shall be deemed held by each Lender
or the LC Issuer, as the case may be, for the benefit of any such Lending
Installation.  Each Lender and the LC
Issuer may, by written notice to the Agent and the Borrower in accordance with Article
XIII, designate replacement or additional Lending Installations through
which Loans will be made by it or Facility LCs will be issued by it and for
whose account Loan payments or payments with respect to Facility LCs are to be
made.


 


2.23                           Non Receipt of Funds by the Agent.  Unless the Borrower or a Lender, as the case may be, notifies the
Agent prior to the date on which it is scheduled to make payment to the Agent
of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of
the Borrower, a payment of principal, interest or fees to the Agent for the
account of the Lenders, that it does not intend to make such payment, the Agent
may assume that such payment has been made. 
The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such
assumption.  If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the Agent,
the recipient of such payment shall, on demand by the Agent, repay to the Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to (x) in the case of payment by a Lender, the Federal Funds Effective
Rate for such day


 


39

















 


for
the first three days and, thereafter, the interest rate applicable to the
relevant Loan or (y) in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan.


 


2.24                           Limitation of Interest. The Borrower, the Agent
and the Lenders intend to strictly comply with all applicable laws, including
applicable usury laws.  Accordingly, the
provisions of this Section 2.24 shall govern and control over every
other provision of this Agreement or any other Loan Document which conflicts or
is inconsistent with this Section 2.24, even if such provision declares
that it controls.  Notwithstanding
anything to the contrary contained in any Loan Document, the interest and fees
paid or agreed to be paid under the Loan Documents shall not exceed the maximum
rate of non-usurious interest permitted by applicable law (the “Maximum Rate”).  If any Lender shall receive interest or a
fee in an amount that exceeds the Maximum Rate, the excessive interest or fee
shall be applied to the principal of the Loans or, if it exceeds the unpaid
principal, refunded to the Borrower.  In
determining whether the interest or a fee contracted for, charged, or received
by the Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable law, (i) characterize any payment that is not principal
as an expense or fee or premium rather than interest, (ii) exclude voluntary
prepayments and the effects thereof and (iii) amortize, prorate, allocate and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Loans.


 


2.25                           Priority and Liens.


 


(a)                                  The Borrower hereby covenants, represents and warrants that,
upon entry of the Interim Order and the Final Order (when entered), the
Obligations of the Borrower hereunder and under the other Loan Documents: (i)
pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times
constitute allowed administrative expense claims in the Case having priority
over all administrative expenses of the kind specified in Sections 503(b) or
507(b) of the Bankruptcy Code and any and all expenses and claims of the
Borrower, whether heretofore or hereafter incurred, including but not limited
to the kind specified in Sections 105, 326, 328, 330, 331, 503(b), 506(c),
507(a), 507(b), 1112 or 1114 of the Bankruptcy Code; (ii) pursuant to Section
364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected
first priority Lien on all unencumbered property of the Borrower (excluding the
Borrower’s rights in respect of avoidance actions and the proceeds thereof
under the Bankruptcy Code) and on all of the Borrower’s cash and cash
equivalents; (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall
be secured by a perfected Lien upon all property of the Borrower that is
subject to valid and perfected Liens in existence on the Petition Date or to
valid Liens in existence on the Petition Date that are perfected subsequent to
the Petition Date as permitted by Section 546(b) of the Bankruptcy Code or to
Permitted Liens, junior to such valid and perfected Liens; and (iv) without
limiting the scope of the Liens described in clauses (ii) and (iii) above,
pursuant to Section 364(d)(1) of the Bankruptcy Code, the obligations of the
Borrower to repay the Obligations shall be secured by a perfected Lien,
pursuant to Section 364(d)(1) of the Bankruptcy Code, upon all property of the
Borrower that secures (x) the Montana Collateral and (y) the South Dakota
Collateral, which Lien shall have the same priority vis a vis each other Lien
on the same collateral as the Lien which secured the Montana Bonds and the
South Dakota Bonds, respectively, immediately prior to the repayment in full of
the CSFB Loans on the Term Loan Commitment Effective Date and to any Liens
granted after the Petition Date to provide adequate protection in respect
thereof; provided  that (i) the proceeds of the Montana Collateral
shall only be available to the Secured Parties in respect of Obligations not to
exceed the Montana Maximum Amount and (ii) the proceeds of the South Dakota
Collateral shall only be available to the Secured Parties in respect of
Obligations not to exceed the South Dakota Maximum Amount (the limitation
contained in the foregoing proviso will only apply to the proceeds


 


40

















 


of the collateral secured by the Liens described in
this clause(iv) and not to any other Liens in favor of the Secured Parties),
subject in each of clauses (i), (ii), (iii) and (iv) only to the
Carve-Out.  Notwithstanding anything in
any Loan Document, no portion of the Carve-Out shall be utilized for the
payment of professional fees and disbursements incurred in connection with any
challenge to the amount, extent, priority, validity, perfection or enforcement
of the indebtedness of the Loan Parties owing to the Agent, the LC Issuer or
the Lenders or to the Collateral.  The
Agent, the LC Issuer and the Lenders agree that (a) so long as no Default or
Unmatured Default shall have occurred, the Borrower shall be permitted to pay
compensation and reimbursement of expenses allowed and payable under 11 U.S.C.
§ 330 and 11 U.S.C. § 331, as the same may be due and payable, and the same
shall not reduce the Carve-Out and (b) the amount of any retainers received by
any professionals retained in the Case shall not reduce the Carve-Out.  In addition, each Loan Party acknowledges
and agrees that each Guarantor is granting Liens to the Agent for the benefit
of the Secured Parties pursuant to the Security Agreement and the Mortgages (if
any) to which such Guarantor is or may become a party.


 


(b)                                 Subject to the priorities set forth in Section 2.25(a)
and to the Carve-Out, as to all real property the title to which is held by the
Borrower, or the possession of which is held by the Borrower pursuant to
leasehold interest, the Borrower hereby assigns and conveys as security, grants
a security interest in, hypothecates, mortgages, pledges and sets over unto the
Agent on behalf of the Secured Parties all of the right, title and interest of
the Borrower in all of such owned real property and in all such leasehold
interests, together in each case with all of the right, title and interest of
the Borrower in and to all buildings, improvements, and fixtures related
thereto, any lease or sublease thereof, all general intangibles relating
thereto and all proceeds thereof.  The
Borrower acknowledges that, pursuant to the Interim Order and the Final Order
(when entered), the Liens in favor of the Agent for the benefit of the Secured
Parties in all of such real property and leasehold instruments shall be
perfected without the recordation of any instruments of mortgage or
assignment.  The Borrower further agrees
that, upon the request of the Agent, the Borrower shall enter into separate fee
and leasehold mortgages in recordable form with respect to such properties on
terms reasonably satisfactory to the Agent.


 


2.26                           Security Interest in
Facility LC Collateral Account.  Pursuant to Section 364(c)(2) of the Bankruptcy Code, the
Borrower hereby assigns and pledges to the Agent, for its benefit and for the
ratable benefit of the Secured Parties, and hereby grants to the Agent, for its
benefit and for the ratable benefit of the Secured Parties, a first priority
security interest, senior to all other Liens, if any, in all of the Borrower’s
right, title and interest in and to the Facility LC Collateral Account and any
direct investment of the funds contained therein.  Cash held in the Facility LC Collateral Account shall not be
available for use by any Loan Party, whether pursuant to Section 363 of the
Bankruptcy Code or otherwise, until the indefeasible repayment in full of the
Obligations and the termination of all Commitments.


 


2.27                           No Discharge; Survival of Claims.  Each Loan Party agrees that (i) its obligations hereunder shall
not be discharged by the entry of an order confirming a Reorganization Plan
(and each Loan Party, pursuant to Section 1141(d)(4) of the Bankruptcy Code,
hereby waives any such discharge) and (ii) the Superpriority Claim granted to
the Agent, the LC Issuer and the Lenders pursuant to the Orders and described
in Section 2.25 and the Liens granted to the Agent for the benefit of
the Secured Parties pursuant to the Orders and described in Sections 2.25
and 2.26 shall not be affected in any manner by the entry of an order
confirming a Reorganization Plan.


 


41

















 


ARTICLE
III


 


YIELD PROTECTION; TAXES


 


3.1                                 Yield Protection.  If, on or after the Closing Date, the
adoption of any law or any governmental or quasi governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:


 


(a)                                  subjects any Lender or any applicable Lending Installation or
the LC Issuer to any taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender or the LC Issuer in respect
of its Eurodollar Loans, Facility LCs or participations therein, or


 


(b)                                 imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by, any Lender or
any applicable Lending Installation or the LC Issuer (other than reserves and
assessments taken into account in determining the interest rate applicable to
Eurodollar Advances), or


 


(c)                                  imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation or the
LC Issuer of making, funding or maintaining its Eurodollar Loans, or of issuing
or participating in Facility LCs, or reduces any amount receivable by any
Lender or any applicable Lending Installation or the LC Issuer in connection
with its Eurodollar Loans, Facility LCs or participations therein, or requires
any Lender or any applicable Lending Installation or the LC Issuer to make any
payment calculated by reference to the amount of Eurodollar Loans, Facility LCs
or participations therein held or interest or LC Fees received by it, by an
amount deemed material by such Lender or the LC Issuer as the case may be, and
the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or
participating in Facility LCs or to reduce the return received by such Lender
or applicable Lending Installation or the LC Issuer, as the case may be, in
connection with such Eurodollar Loans, Commitment, Facility LCs or
participations therein, then, within fifteen days of demand by such Lender or
the LC Issuer, as the case may be, the Borrower shall pay such Lender or the LC
Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the LC Issuer, as the case may be, for such increased
cost or reduction in amount received.


 


3.2                                 Changes in Capital Adequacy
Regulations.  If a Lender or the LC Issuer determines the
amount of capital required or expected to be maintained by such Lender or the
LC Issuer, any Lending Installation of such Lender or the LC Issuer, or any
corporation controlling such Lender or the LC Issuer is increased as a result
of a Change, then, within fifteen days of demand by such Lender or the LC
Issuer, the Borrower shall pay such Lender or the LC Issuer the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender or the LC Issuer determines is
attributable to this Agreement, its Credit Exposure or its Commitment to make
Loans and issue or participate in Facility LCs, as the case may be, hereunder
(after taking into account such Lender’s or the LC Issuer’s policies as to
capital adequacy).  “Change”
means (i) any change after the date of this


 


42

















 


Agreement
in the Risk Based Capital Guidelines (as defined below) or (ii) any adoption of
or change in any other law, governmental or quasi governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or the LC
Issuer or any Lending Installation or any corporation controlling any Lender or
the LC Issuer.  “Risk-Based Capital
Guidelines” means (i) the risk based capital guidelines in effect in the
U.S. on the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the U.S. implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled “International Convergence of
Capital Measurements and Capital Standards,” including transition rules, and
any amendments to such regulations adopted prior to the date of this Agreement.


 


3.3                                 Availability of Types of Advances.  If any Lender determines that maintenance of its Eurodollar Loans
at a suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or if the
Required Lenders determine that (i) deposits of a type and maturity appropriate
to match fund Eurodollar Advances are not available or (ii) the interest rate
applicable to Eurodollar Advances does not accurately reflect the cost of
making or maintaining Eurodollar Advances, then the Agent shall suspend the
availability of Eurodollar Advances and require any affected Eurodollar
Advances to be repaid or converted to Floating Rate Advances, subject to the
payment of any funding indemnification amounts required by Section 3.4.


 


3.4                                 Funding Indemnification.  If any payment of a Eurodollar Advance occurs on a date which is
not the last day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a Eurodollar Advance is not made on
the date specified by the Borrower for any reason other than default by the
Lenders, the Borrower will indemnify each Lender for any loss or cost incurred
by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurodollar
Advance.


 


3.5                                 Taxes.


 


(a)                                  All payments to or for the account of any Lender, the LC
Issuer, the Agent or any other Secured Party hereunder or under any Loan
Document shall be made free and clear of and without deduction or withholding
of or for any and all Taxes, unless required by applicable law.  If Taxes shall be required by law to be
deducted or withheld from or in respect of any sum payable hereunder to any
Lender, the LC Issuer, the Agent or other Secured Party, (i) the Borrower shall
increase the sum payable as necessary so that such Lender, the LC Issuer, the
Agent or other Secured Party (as the case may be) receives and retains an
amount equal to the sum it would have received and retained had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (iv) the Borrower shall furnish to the Agent
the original or a certified copy of a receipt evidencing payment thereof within
thirty days after such payment is made.


 


(b)                                 In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or under any Loan
Document or from the execution or delivery of, or otherwise with respect to,
any Loan Document (“Other Taxes”).


 


(c)                                  The Borrower hereby agrees to indemnify the Agent, the LC
Issuer, each Lender and each other Secured Party for the full amount of Taxes
and Other Taxes (including,


 


43

















 


without limitation, any Taxes and Other Taxes imposed
on amounts payable under this Section 3.5) paid by the Agent, the LC
Issuer, such Lender or such other Secured Party as a result of its Commitment,
any Loans made by it hereunder, any Facility LC issued hereunder or otherwise
in connection with its participation in any Loan Document and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto.  Payments due under this
indemnification shall be made within thirty days of the date the Agent, the LC
Issuer, such Lender or such other Secured Party makes demand therefor pursuant
to Section 3.6.


 


(d)                                 Each Lender that is not incorporated under the laws of the
U.S. or a state thereof (each a “Non-U.S. Lender”) and that is legally
entitled to do so agrees that it will, not more than ten Business Days after the
date on which it becomes a party to this Agreement, (i) deliver to the Agent
two duly completed copies of the applicable U.S. Internal Revenue Service Form
W-8.  Each Non-U.S. Lender further
undertakes to deliver to each of the Borrower and the Agent (x) renewals or
additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested by the
Borrower or the Agent.


 


(e)                                  Should a Non-U.S. Lender which is otherwise exempt from or
subject to a reduced rate of withholding tax become subject to Taxes because of
its failure to deliver a form required under Section 3.5(d), the
Borrower shall take such steps as such Non-U.S. Lender shall reasonably request
to assist such Non-U.S. Lender to recover such Taxes.


 


(f)                                    Any Lender that is entitled to an exemption from or reduction
of withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower and the Agent, at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding or at a reduced
rate or withholding.


 


(g)                                 If the U.S. Internal Revenue Service or any other
governmental authority of the U.S. or any other country or any political
subdivision of any of the foregoing asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed, because
such Lender failed to notify the Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for any other reason),
such Lender shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax, withholding therefor, or otherwise, including
without limitation penalties, interest and additions to tax, and including
taxes imposed by any jurisdiction on amounts payable to the Agent under this
subsection, together with all costs and expenses related thereto (including
without limitation attorneys fees and time charges of attorneys for the Agent,
which attorneys may be employees of the Agent).  The obligations of the Lenders under this Section 3.5(g)
shall survive the payment of the Obligations and termination of this Agreement.


 


3.6                                 Lender Statements; Survival
of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce any liability of
the Borrower to such Lender under Sections 3.1, 3.2 and 3.5
or to avoid the unavailability of Eurodollar Advances under Section 3.3,
so long as such designation is not, in the judgment of such


 


44

















 


Lender,
disadvantageous to such Lender.  Each
Lender shall deliver a written statement of such Lender to the Borrower (with a
copy to the Agent) as to the amount due, if any, under Section 3.1, 3.2,
3.4 or 3.5.  Such written
statement shall set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. 
Determination of amounts payable under Sections 3.1, 3.2
or 3.3 in connection with a Eurodollar Loan shall be calculated as
though each Lender funded its Eurodollar Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that
is the case or not.  Unless otherwise
provided herein, the amount specified in the written statement of any Lender
shall be payable on demand after receipt by the Borrower of such written
statement.  The obligations of the
Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall
survive payment of the Obligations and termination of this Agreement.


 


ARTICLE
IV


 


CONDITIONS PRECEDENT


 


4.1                                 Closing Date.  This Agreement will not become effective
unless the Loan Parties have satisfied each of the following conditions in a
manner satisfactory to the Agent, the LC Issuer and the Lenders, and with
respect to any condition requiring delivery of any agreement, certificate,
document, or instrument, the Loan Parties shall have furnished to the Agent
sufficient copies of any such agreement, certificate, document, or instrument
for distribution to the Lenders:


 


(a)                                  This Agreement or counterparts hereof shall have been duly
executed by each Loan Party, the Agent, the LC Issuer and the Lenders; and the
Agent shall have received duly executed copies of the Loan Documents and such
other documents, instruments and agreements as the Agent shall request in
connection with the transactions contemplated by this Agreement and the other
Loan Documents, each in form and substance reasonably satisfactory to the
Agent;


 


(b)                                 Each Loan Party shall have delivered copies of its articles
or certificate of incorporation or organization, together with all amendments,
and a certificate of good standing, each certified by the appropriate
governmental officer in its jurisdiction of incorporation or organization;


 


(c)                                  Each Loan Party shall have delivered copies, certified by its
Secretary or Assistant Secretary, of its by-laws or operating, management or
partnership agreement and of its Board of Directors’ resolutions or the
resolutions of its members and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which such Loan Party is a
party;


 


(d)                                 Each Loan Party shall have delivered an incumbency
certificate, executed by its Secretary or Assistant Secretary, which shall
identify by name and title and bear the signatures of the Authorized Officers
and any other officers such Loan Party authorized to sign the Loan Documents to
which such Loan Party is a party, upon which certificate the Agent and the
Lenders shall be entitled to rely until informed of any change in writing by
such Loan Party;


 


(e)                                  The Borrower shall have delivered a certificate, signed by
the Chief Financial Officer, Chief Restructuring Officer or Chief Accountant of
the Borrower, on the initial Credit Extension Date (i) stating that no Default
or Unmatured Default has occurred and is


 


45

















 


continuing, (ii) stating that the representations and
warranties contained in Article V are true and correct as of such Credit
Extension Date, (iii) specifying the deposit account at Bank One which shall be
used as the Funding Account and (iv) certifying any other factual matters as
may be reasonably requested by the Agent or any Lender;


 


(f)                                    The Loan Parties shall have delivered written opinions of the
Loan Parties’ counsel, addressed to the Agent, the LC Issuer and the Lenders,
such opinions to be in form and substance satisfactory to the Agent and its
legal counsel;


 


(g)                                 The Borrower shall have delivered the initial Lender a
Revolving Note;


 


(h)                                 The Borrower shall have delivered money transfer
authorizations as the Agent may have reasonably requested;


 


(i)                                     The Agent shall have received all Lien and other searches
that the Agent deems necessary (except with respect to fixed assets and real
estate), the Agent shall have been authorized to file any UCC financing
statements that the Agent deems necessary to perfect its Liens in the
Collateral and Liens creating the security interest in the Collateral with the
priority required by the Interim Order and the Loan Documents and in favor of
the Agent shall have been perfected;


 


(j)                                     The Borrower shall have delivered a Borrowing Base
Certificate which calculates the Borrowing Base as of the end of the Business
Day immediately preceding the Effective Date;


 


(k)                                  [intentionally omitted];


 


(l)                                     [intentionally omitted];


 


(m)                               The Loan Parties shall have delivered to the Agent and the
Lenders a schedule of projected thirteen week cash receipts and cash disbursements
approved and accepted by the Agent and the Lenders for the period commencing on
the Petition Date;


 


(n)                                 [intentionally omitted];


 


(o)                                 All legal (including tax implications) and regulatory
matters, including, but not limited to compliance with applicable requirements
of Regulations U, T and X of the Board of Governors of the Federal Reserve
System, shall be satisfactory to the Agent and the Lenders;


 


(p)                                 The Loan Parties shall have received all regulatory approvals
(if any) necessary to consummate the Facility and to execute, deliver and
perform their respective obligations under, this Agreement and each other Loan
Document, including but not limited to approvals from the relevant state public
utility commissions and from the Federal Energy Regulatory Commission;


 


(q)                                 The Borrower shall have delivered evidence of insurance
coverage in form, scope, and substance reasonably satisfactory to the Agent and
otherwise in compliance with the terms of Section 6.7;


 


46

















 


(r)                                    The Borrower shall have delivered each Collateral Access
Agreement required to be provided by the Agent;


 


(s)                                  [intentionally omitted];


 


(t)                                    [intentionally omitted];


 


(u)                                 [intentionally omitted];


 


(v)                                 [intentionally omitted];


 


(w)                               The Borrower shall have paid all of the fees and expenses
owing to the Agent, the Arranger, the LC Issuer and the Lenders pursuant to Section
2.10 and Section 9.6(a), as invoiced;


 


(x)                                   The Effective Date shall occur on or before October 31, 2003;


 


(y)                                 Except as reflected or disclosed in the Borrower’s Annual
Report on Form 10-K and Quarterly Reports on Form 10-Q filed with the
Securities Exchange Commission, or as otherwise disclosed to the Agent and the
Lenders in writing prior to September 12, 2003, there shall exist no unstayed
action, suit, investigation, litigation or proceeding (other than the Case)
pending or, to the knowledge of the Loan Parties, threatened in any court or
before any arbitrator or governmental instrumentality that has a reasonable
probability of having a Material Adverse Effect;


 


(z)                                   All motions and other documents to be filed with and
submitted to the Bankruptcy Court in connection with the Facility and the
approval thereof shall be in form and substance reasonably satisfactory to the
Agent and the Lenders;


 


(aa)                            All first-day and related orders entered into by the
Bankruptcy Court in the Case shall be in form and substance reasonably
satisfactory to the Agent and the Lenders;


 


(bb)                          The Bankruptcy Court shall have entered an order (the “Interim
Order”), in any event not later than ten Business Days following the
Petition Date, acceptable in all respects to the Agent and the Lenders on an
application or motion by the Borrower, such motion to be satisfactory in form
and substance to the Lenders, which Interim Order shall have been entered on
such notice to such parties as may be reasonably satisfactory to the Agent and
the Lenders, approving borrowing under the Facility up to $50,000,000 of
Revolving Loans and granting the Liens and priority described in Section
2.25, which Interim Order shall, among others, (i) approve the Credit
Extensions under the Revolving Loans in amounts up to $100,000,000, (ii)
approve the payment by the Borrower of all fees provided for in the Loan
Documents and any related fee letters (including those payable by the Borrower
upon execution of a commitment letter with respect to the aggregate Term Loan
Commitment of $390,000,000 and any other fees contemplated in such commitment
letter or other fee letter), (iii) lift the automatic stay to permit the
Borrower to perform its obligations, and the Agent and the Secured Parties to
exercise their rights and remedies with respect to, the Facility and (iv) have
not been reversed, vacated, modified, amended or stayed; and


 


(cc)                            The Loan Parties shall have delivered such other documents as
the Agent, the LC Issuer, any Lender or their respective counsel may have
reasonably requested.


 


47

















 


4.2                                 Term Loan
Commitment Effective Date.  The Term Loan
Commitment Effective Date shall not occur or be deemed to occur unless the Loan
Parties have satisfied each of the following conditions in a manner
satisfactory to the Agent, the LC Issuer and the Term Lenders, and with respect
to any condition requiring delivery of any agreement, certificate, document, or
instrument, the Loan Parties shall have furnished to the Agent sufficient
copies of any such agreement, certificate, document, or instrument for
distribution to the Term Lenders:


 


(a)                                  The Effective Date shall have occurred;


 


(b)                                 Each of the conditions precedent contained in Section 4.3
shall have been met on the Term Loan Commitment Effective Date;


 


(c)                                  The Borrower shall have provided the Agent with a written
notice on or before the date which is thirty days after the Petition Date
stating its intention that, upon satisfaction of the applicable conditions
precedent contained in this Section 4.2 and in Section 4.3, the
Borrower desires to have the Term Loan Commitment Effective Date occur;


 


(d)                                 The Term Loan Commitment Effective Date shall occur on or
before the date which is forty-five days after the Petition Date;


 


(e)                                  The Agent shall have determined that (i) since the Closing
Date, there is an absence of any material adverse change or disruption in primary
or secondary loan syndication markets, financial markets or in capital markets
generally that would likely impair syndication of the Credit Extensions
hereunder and (ii) the Loan Parties shall have fully cooperated with the
Agent’s syndication efforts including, without limitation, by providing the
Agent with information regarding the Loan Parties’ operations and prospects and
such other information as the Agent deems necessary to successfully syndicate
the Credit Extensions hereunder;


 


(f)                                    The Borrower shall have delivered a certificate, signed by
the Chief Financial Officer, Chief Restructuring Officer or Chief Accountant of
the Borrower, on the Term Loan Commitment Effective Date (i) stating that no
Default or Unmatured Default has occurred and is continuing, (ii) stating that
the representations and warranties contained in Article V are true and
correct as of such Credit Extension Date and (iii) certifying any other factual
matters as may be reasonably requested by the Agent or any Term Lender;


 


(g)                                 The Agent shall have received all Lien and other searches
that the Agent deems necessary, the Agent shall have been authorized to file
any UCC financing statements that the Agent deems necessary to perfect its
Liens in the Collateral and Liens creating a security interest in the
Collateral having the priority set forth in the Orders, Section 2.25 and
in the other Loan Documents in favor of the Agent shall have been perfected;


 


(h)                                 The Agent and the Term Lenders shall have completed their
additional business due diligence (including additional field audits and
appraisals) and the Borrower’s and its Subsidiaries’ (other than Excluded
Subsidiaries) corporate structure, capital structure, material accounts and
governing documents shall be acceptable to the Agent and the Term Lenders;


 


(i)                                     All legal (including tax implications) and regulatory
matters, including, but not limited to compliance with applicable requirements
of Regulations U, T and X of the Board of


 


48

















 


Governors of the Federal Reserve System, shall be
satisfactory to the Agent and the Term Lenders;


 


(j)                                     The Loan Parties shall have received all regulatory approvals
(if any) necessary with respect to the occurrence of the Term Loan Commitment
Effective Date and the related increase in Commitments, including but not
limited to approvals from the relevant state public utility commissions and
from the Federal Energy Regulatory Commission;


 


(k)                                  The Agent and each Term Lender shall have received internal
credit or investment committee approval with respect to the occurrence of the
Term Loan Commitment Effective Date, it being understood that the decision of
the Agent or any Term Lender whether to approve the occurrence of the Term Loan
Commitment Effective Date (and the related increase in Term Loan Commitments)
shall be within the sole discretion of the Agent or such Term Lender (as
applicable);


 


(l)                                     The Agent and the Term Lenders shall have received (at
Borrower’s expense) and be satisfied with an independent valuation of the
business of the Borrower and its Subsidiaries. 
The valuation firm shall be engaged directly by the Agent and shall have
no direct or indirect interest, financial or otherwise, in the Loan Parties,
the Collateral or otherwise;


 


(m)                               The Agent and the Term Lenders shall have received and be
satisfied with an engineering report on the state of the Loan Parties’
infrastructure;


 


(n)                                 The Bankruptcy Court shall have entered an order, in any
event not later than forty-five days following the Petition Date, acceptable in
all respects to the Agent and the Term Lenders on an application or motion by
the Borrower, such motion to be satisfactory in form and substance to the Term
Lenders, which order shall have been entered on such notice to such parties as
may be satisfactory to the Agent and the Term Lenders, approving the Facility,
borrowing of the Revolving Loans up to the full $100,000,000 and borrowing of
the Term Loans up to the full $390,000,000 Term Loan Commitment on a final
basis and confirming the granting of the Liens and priority described in Section
2.25, and which order shall approve the repayment of the CSFB Loan;


 


(o)                                 The Loan Parties shall have delivered each Mortgage (if any)
required to be provided by the Agent;


 


(p)                                 The Loan Parties shall have delivered any requested
environmental review reports from firm(s) satisfactory to the Agent, which
review reports shall be acceptable to the Agent. Any environmental hazards or
liabilities identified in any such environmental review reports shall indicate
the Loan Parties’ plans with respect thereto;


 


(q)                                 The Loan Parties shall have delivered each Collateral Access
Agreement required to be provided by the Agent;


 


(r)                                    The Borrower shall have delivered any Term Notes requested by
a Term Lender pursuant to Section 2.21 payable to the order of each such
requesting Term Lender;


 


(s)                                  The Loan Parties shall have delivered resolutions which are
in full force and effect authorizing the Advance of the Term Loans together
with legal opinions with respect to


 


49

















 


corporate authorization and related matters, such
resolutions and opinions to be in form and substance satisfactory to the Agent;
and


 


(t)                                     The Loan Parties shall have delivered such other documents
and legal opinions as the Agent, the LC Issuer, any Term Lender or their
respective counsel may have reasonably requested.


 


4.3                                 Each Credit Extension.  Except as otherwise expressly provided herein, the Lenders shall
not be required to make any Credit Extension if on the applicable Credit
Extension Date:


 


(a)                                  There exists any Default or Unmatured Default or any Default
or Unmatured Default shall result from any such Credit Extension and the Agent
or the Required Lenders shall have determined not to make any Credit Extension
as a result of such Default or Unmatured Default;


 


(b)                                 Any representation or warranty contained in Article V
is untrue or incorrect as of such Credit Extension Date except to the extent
any such representation or warranty is stated to relate solely to an earlier
date, and the Agent or the Required Lenders shall have determined not to make
any Credit Extension as a result of the fact that such representation or
warranty is untrue or incorrect;


 


(c)                                  After giving effect to any Credit Extension, Availability
would be less than zero;


 


(d)                                 The making of such Credit Extension violates any requirement
of law or is enjoined, temporarily, preliminarily or permanently;


 


(e)                                  The Loan Parties shall have failed to deliver any other
document reasonably requested by the Agent, the LC Issuer or any Lender; or


 


(f)                                    If in the case of each Credit Extension on or after the date
the Bankruptcy Court enters the Final Order, such state regulatory approvals as
the Required Lenders deem necessary (including, without limitation, approval of
the public utility commissions for the State of Montana and the State of
Nebraska) shall not have been obtained and entered and remain in full force and
effect.


 


Each
Borrowing Notice or request for issuance of Facility LC with respect to each
such Credit Extension shall constitute a representation and warranty by the
Borrower that the conditions contained in Sections 4.3(a), (b), (c)
and (f) (if (f) is applicable) have been satisfied.  The Agent may require a duly completed
Compliance Certificate as a condition to making a Credit Extension.


 


ARTICLE
V


 


REPRESENTATIONS AND WARRANTIES


 


Each Loan Party represents
and warrants to the Agent, the LC Issuer and the Lenders as follows:


 


5.1                                 Existence and Standing.  Each Loan Party is a corporation or limited liability company
duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization
and has all requisite authority to conduct its business in each jurisdiction in
which its


 


50

















 


business
is conducted (with respect to the Borrower, subject to the entry by the
Bankruptcy Court of the Interim Order or the Final Order (when entered)).


 


5.2                                 Authorization and Validity.  Subject to the entry by the Bankruptcy Court of the Interim Order
(or the Final Order, when entered) with respect to the Borrower, each Loan
Party has the power and authority and legal right to execute and deliver the
Loan Documents to which it is a party and to perform its obligations
thereunder.  The execution and delivery
by each Loan Party of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
proceedings, and, with respect to the Borrower subject to the entry by the
Bankruptcy Court of the Interim Order (or the Final Order, when entered), the
Loan Documents to which such Loan Party is a party constitute legal, valid and
binding obligations of such Loan Party enforceable against such Loan Party in
accordance with their terms and the Orders.


 


5.3                                 No Conflict; Government Consent.  Neither the execution and delivery by any Loan Party of the Loan
Documents to which it is a party, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on such Loan Party or (ii) any Loan Party’s articles or
certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by laws, or operating or
other management agreement, as the case may be, (iii) with respect to the Borrower,
subject to the entry by the Bankruptcy Court of the Interim Order (or the Final
Order, when entered), the provisions of any indenture, instrument or agreement
to which the Borrower is a party or is subject entered into after the Petition
Date or assumed by the Borrower in the Case, or by which it, or its Property,
is bound, or conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of
the Borrower pursuant to the terms of any such indenture, instrument or
agreement or (iv) with respect to any Guarantor, the provisions of any
indenture, instrument or agreement to which any Loan Party is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of such Loan Party pursuant to
the terms of any such indenture, instrument or agreement.  Other than the Orders, no order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by a Loan Party, is required to be obtained by any Loan
Party in connection with the execution and delivery of the Loan Documents, the
borrowings under this Agreement, the granting of Liens under this Agreement,
the Orders or any other Loan Document, the payment and performance by the Loan
Parties of the Obligations or the legality, validity, binding effect or
enforceability of any of the Loan Documents.


 


5.4                                 Security Interest in Collateral.  The provisions of the Interim Order (or the Final Order, when
entered), this Agreement and the other Loan Documents create legal and valid
Liens on all the Collateral owned by the Loan Parties in favor of the Agent,
for the benefit of the Agent and the other Secured Parties, and such Liens
constitute perfected and continuing Liens on the Collateral, securing the
Obligations, enforceable against the Loan Parties and all third parties, and
having the priority set forth in the Orders, Sections 2.25 and 2.26
and the other Loan Documents.


 


5.5                                 Financial Statements.


 


(a)                                  The audited consolidated financial statements of the Borrower
and its Subsidiaries for the period ending on December 31, 2002 heretofore
delivered to the Lenders were prepared in accordance with GAAP (as in effect on
the date such statements were prepared) and fairly present the consolidated
financial condition and operations of the Borrower and its Subsidiaries at such
date and the consolidated results of their operations for the period


 


51

















 


then ended. 
The unaudited consolidated financial statements of the Borrower and its
Subsidiaries for the Fiscal Quarter ended June 30, 2003 heretofore delivered by
the Borrower to the Lenders were prepared in accordance with GAAP (as in effect
on the date such statements were prepared except for the presentation of
footnotes and for applicable normal year-end audit adjustments) and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.


 


(b)                                 The Projections delivered pursuant to clause (m) of Section
4.1 and dated September 14, 2003, the business plan delivered pursuant to Section
6.41(c) and the most recent Projections delivered to the Agent and the
Lenders pursuant to Section 6.1(t), represent the Borrower’s good faith
estimate of the future financial performance of the Borrower and its
Subsidiaries (other than Excluded Subsidiaries) for the period set forth
therein.


 


5.6                                 Material Adverse Change.  Other than changes which customarily occur as a result of events
leading up to and following the commencement of a proceeding under chapter 11
of the Bankruptcy Code and the commencement of the Case, since December 31,
2002 there has been no change in the business, Property, prospects, condition
(financial or otherwise) or results of operations of the Borrower and its
Subsidiaries (other than Excluded Subsidiaries) which could reasonably be
expected to have a Material Adverse Effect.


 


5.7                                 Taxes.  Except as set forth on Schedule 5.7,
each Loan Party has filed all U.S. federal tax returns and all other tax
returns which are required to be filed and have paid all taxes due pursuant to
said returns or pursuant to any assessment received by any such Person, except
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with GAAP and as to which no
Lien exists or except to the extent non-payment is permitted by the Bankruptcy
Code.  The U.S. income tax returns of
each Loan Party have been audited by the Internal Revenue Service through the
Fiscal Year ended December 31, 1999.  No
tax liens have been filed and no claims are being asserted with respect to any
such taxes.  The charges, accruals and
reserves on the books of the Loan Parties in respect of any taxes or other
governmental charges are adequate.


 


5.8                                 Litigation and Contingent Obligations.  Other than the Case and except as disclosed in the Borrower’s
public filings filed with the Securities and Exchange Commission prior to the
date hereof, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Borrower or its Subsidiaries (other than
Excluded Subsidiaries) which could reasonably be expected to have a Material
Adverse Effect or which seeks to prevent, enjoin or delay the making of any
Credit Extensions.  Other than any liability
incident to any litigation, arbitration or proceeding which (i) could not
reasonably be expected to have a Material Adverse Effect or (ii) is disclosed
in the Borrower’s public filings filed with the Securities and Exchange
Commission prior to the date hereof, neither the Borrower nor any Subsidiary
(other than Excluded Subsidiaries) has any material contingent obligations not
provided for or disclosed in the financial statements referred to in Section
5.5.


 


5.9                                 Capitalization and Subsidiaries.  Schedule 5.9 sets forth (a) a correct and complete list of
the name and relationship to the Borrower of each other Loan Party, (b) the
location of the chief executive office of the Loan Parties and each other
location where any of them have maintained their chief executive office in the
past five years, (c) a true and complete listing of each class of each Loan
Party’s authorized Capital Stock, of which all of such issued shares are
validly issued, outstanding, fully paid and non-assessable and (d) the type of
entity of each Loan Party.  With respect
to each Loan Party, Schedule 5.9 also sets forth the employer or
taxpayer identification number of each Loan Party and the organizational
identification number issued by each Loan Party’s jurisdiction of organization
or a


 


52

















 


statement
that no such number has been issued. 
All of the issued and outstanding Capital Stock owned by any Loan Party
has been (to the extent such concepts are relevant with respect to such
ownership interests) duly authorized and issued and is fully paid and
nonassessable.


 


5.10                           ERISA.  The Unfunded Liabilities of all Single
Employer Plans do not in the aggregate exceed $120,000,000.  Neither the Borrower nor any other member of
the Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in excess of $500,000 in the
aggregate.  Each Plan complies in all
material respects with all applicable requirements of law and regulations, no
Reportable Event has occurred with respect to any Plan, neither the Borrower
nor any other member of the Controlled Group has withdrawn from any Plan or
initiated steps to do so, and no steps have been taken to reorganize or
terminate any Plan.


 


5.11                           Accuracy of Information.  No information, exhibit or report furnished by any Loan Party to
the Agent or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents contained any material misstatement of fact or omitted
to state a material fact or any fact necessary to make the statements contained
therein not misleading.


 


5.12                           Names; Prior Transactions.  Except as set forth on Schedule 5.12, each Loan Party has
not, during the past five years, been known by or used any other corporate or
fictitious name, or been a party to any merger or consolidation, or been a
party to any Acquisition.


 


5.13                           Regulation U.  No Loan Party is engaged, nor will it
engage, principally or as one of its important activities, in the business of
extending credit for the purpose of “purchasing” or “carrying” any “margin
stock” as such terms are defined in Regulation U of the Federal Reserve Board
as now and from time to time hereafter in effect (such securities being
referred to herein as “Margin Stock”). 
No Loan Party owns any Margin Stock, and none of the proceeds of the
Loans or other extensions of credit under this Agreement will be used, directly
or indirectly, for the purpose of purchasing or carrying any Margin Stock, for
the purpose of reducing or retiring any Indebtedness that was originally incurred
to purchase or carry any Margin Stock or for any other purpose that might cause
any of the Loans or other extensions of credit under this Agreement to be
considered a “purpose credit” within the meaning of Regulations T, U or X of
the Federal Reserve Board.  No Loan
Party will take or permit to be taken any action that might cause any Loan
Document to violate any regulation of the Federal Reserve Board.


 


5.14                           Compliance With Laws.  The Borrower and its Subsidiaries (other than Excluded
Subsidiaries) have complied with all applicable statutes, rules, regulations,
orders and restrictions of any domestic or foreign government or any
instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property, except for
any failure to comply with any of the foregoing which could not reasonably be
expected to have a Material Adverse Effect.


 


5.15                           Ownership of Properties.  Except as set forth on Schedule 5.15, on the date of this
Agreement, each Loan Party will have good title, free of all Liens other than
Permitted Liens, to all of the Property and assets reflected in the Borrower
and its Subsidiaries’ most recent consolidated financial statements provided to
the Agent as owned by the Loan Parties.


 


5.16                           Plan Assets; Prohibited Transactions.  The Borrower is not an entity deemed to hold “plan assets” within
the meaning of 29 C.F.R. § 2510.3-101 of an employee benefit plan (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan
(within the meaning of Section 4975 of the Code), and neither the execution of
this Agreement nor the making of Credit Extensions hereunder gives rise to a
prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code.


 


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5.17                           Environmental Matters.  In the ordinary course of its business, the officers of the
Borrower and its Subsidiaries (other than Excluded Subsidiaries) consider the
effect of Environmental Laws on the business of the Borrower and its
Subsidiaries (other than Excluded Subsidiaries), in the course of which they
identify and evaluate potential risks and liabilities accruing to such Persons
due to Environmental Laws.  On the basis
of this consideration, the Borrower does not reasonably expect that
Environmental Laws will have a Material Adverse Effect.  Except as set forth on Schedule 5.17
or as disclosed in the Borrower’s public filings filed with the Securities and
Exchange Commission prior to the date hereof, no Loan Party has received any
notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or has received notice
that it is the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment.


 


5.18                           Investment Company Act.  No Loan Party is an “investment company” or a company
“controlled” by an “investment company”, within the meaning of the Investment
Company Act of 1940, as amended.


 


5.19                           Public Utility Holding Company Act; State
Utility Regulation.  Except as set forth on Schedule 5.19,
no Loan Party is subject to regulation under any Federal or state statute,
regulation, decree or order which limits its ability to incur Indebtedness or
conditions such ability upon any act, approval or consent of any governmental
authority or ISO.  Notwithstanding any
disclosure set forth on Schedule 5.19, no approval, authorization or
consent of any governmental authority or ISO is required in connection with the
execution and delivery of this Agreement, the other Loan Documents, the
borrowings under this Agreement, the granting of Liens under this Agreement or any
other Loan Document.  Each Loan Party is
either (i) not a “holding company”, a “subsidiary company” of a “holding
company”, or an “affiliate” of a “holding company”, as each such term is
defined in the Public Utility Holding Company Act of 1935, as amended, or (ii)
exempt from registration as a holding company under the Public Utility Holding
Company Act of 1935, as amended, by reason of filing an application on Form U-1
in good faith seeking an order of exemption pursuant to Section 3(a)(3) of that
Act, and no Loan Party has received notice from the U.S. Securities and
Exchange Commission challenging or otherwise calling into question such
exemption.


 


5.20                           Bank Accounts.  As of the Closing Date, Exhibit B to the
Security Agreement contains a complete and accurate list of all bank accounts
maintained by each Loan Party with any bank or other financial institution.


 


5.21                           Indebtedness.  As of the Closing Date and after giving
effect to the Credit Extensions to be made on the Closing Date (if any), the
Borrower and its Subsidiaries (other than Excluded Subsidiaries) have no
Indebtedness, except for (i) the Obligations and (ii) any Indebtedness
described on Schedule 5.21.  Schedule
5.21 sets forth a complete and accurate listing of all Indebtedness or
other obligations secured by the Montana Collateral and the South Dakota
Collateral.


 


5.22                           Affiliate Transactions.  Except as set forth on Schedule 5.22, as of the Closing
Date there are no existing or proposed agreements, arrangements,
understandings, or transactions between the Borrower or any Subsidiary (other
than Excluded Subsidiaries) and any of the officers, members, managers,
directors, stockholders, parents, other interest holders, employees, or
Affiliates of any such Person or any members of such Person’s immediate
families, other than in the ordinary course of business and upon fair and
reasonable terms no less favorable to such Person than such Person would have
obtained in a comparable arms length transaction, and none of the foregoing
Persons are directly or indirectly indebted to or have any direct or indirect
ownership, partnership, or voting interest in any Affiliate of the Borrower or
any Subsidiary (other than Excluded Subsidiaries) or any Person with which the
Borrower or any Subsidiary has a business relationship or which competes with
the Borrower or any


 


54

















 


Subsidiary
(other than Excluded Subsidiaries) (except that any such Persons may own stock
in (but not exceeding 2.0% of the outstanding Capital Stock of) any publicly
traded company that may compete with the Borrower or any Subsidiary).


 


5.23                           Intellectual Property Rights.  As of the Closing Date: (a) Schedule 5.23
sets forth a correct and complete list of all material Intellectual Property
Rights of each Loan Party; (b) none of the Intellectual Property Rights listed
in Schedule 5.23 is subject to any licensing agreement or similar
arrangement except as set forth in Schedule 5.23; (c) the Intellectual
Property Rights described in Schedule 5.23 constitute all of the
property of such type necessary to the current and anticipated future conduct
of each Loan Party’s business; (d) to the best of each Loan Party’s knowledge,
no slogan or other advertising device, product, process, method, substance, part,
or other material now employed, or now contemplated to be employed, by any Loan
Party infringes in any material respect upon any rights held by any other
Person; and (e) no claim or litigation regarding any of the foregoing is
pending or threatened, and no patent, invention, device, application, principle
or any statute, law, rule, regulation, standard, or code is pending or, to the
knowledge of any Loan Party, proposed, which, in either case, could reasonably
be expected to have a Material Adverse Effect.


 


5.24                           Insurance. The
properties, business and operations of the Loan Parties are insured or
reinsured with financially sound and reputable insurance companies not
affiliated with the Borrower or any Subsidiary, in such amounts, with such
deductibles and covering such risks as are insured against and carried in
accordance with applicable law and prudent industry practice by companies
engaged in similar businesses as the Loan Parties and owning or operating
similar properties.


 


5.25                           Post Retirement Benefits.  The present value of the expected cost of post retirement medical
and insurance benefits payable by the Loan Parties to its employees and former
employees, as estimated by the Borrower in accordance with procedures and
assumptions deemed reasonable by the Required Lenders, does not exceed $70
million.


 


5.26                           Common Enterprise.  The successful operation and condition of
each of the Loan Parties is dependent on the continued successful performance
of the functions of the group of the Loan Parties as a whole and the successful
operation of each of the Loan Parties is dependent on the successful
performance and operation of each other Loan Party.  Each Loan Party expects to derive benefit (and its board of
directors or other governing body has determined that it may reasonably be
expected to derive benefit), directly and indirectly, from (i) successful
operations of each of the other Loan Parties and (ii) the credit extended by
the Lenders to the Borrower hereunder, both in their separate capacities and as
members of the group of companies.  Each
Loan Party has determined that execution, delivery, and performance of this
Agreement and any other Loan Documents to be executed by such Loan Party is
within its purpose, will be of direct and indirect benefit to such Loan Party,
and is in its best interest.


 


5.27                           Reportable Transaction.  The Borrower does not intend to treat the Advances and related
transactions as being a “reportable transaction” (within the meaning of
Treasury Regulation Section 1.6011-4). 
In the event the Borrower determines to take any action inconsistent
with such intention, it will promptly notify the Agent thereof.


 


5.28                           Labor Disputes.  Except as set forth on Schedule 5.28,
as of the Closing Date (a) no collective bargaining agreement or other labor
contract covering employees of any Loan Party is scheduled to expire during the
term of this Agreement, (b) no union or other labor organization is seeking to
organize, or to be recognized as, a collective bargaining unit of employees of
any Loan Party or for any similar purpose and (c) there is no pending or (to
the best of the Borrower’s knowledge) threatened, strike, work stoppage,
material unfair labor practice claim, or other material labor dispute against
or affecting any Loan Party or its employees.


 


55

















 


5.29                           Orders.  The Interim Order and the Final Order, as
applicable, and the transactions contemplated hereby and thereby, are in full
force and effect and have not been vacated, reversed, modified, amended or
stayed without the prior written consent of the Agent.


 


5.30                           No Default.  There exists no Default or Unmatured
Default.


 


5.31                           Montana Megawatts I, LLC; Turbine Collateral.  MM I does not own, and has never owned, any assets other than the
Turbine Collateral.  MM I does not have,
and has never had, any liability of any kind, contingent or otherwise, since
its formation, other than (i) ordinary course administrative expenses not
exceeding $1,000,000 in the aggregate and (ii) obligations assumed under and
pursuant to that certain Assignment and Assumption Agreement, dated as of
September 14, 2001, among MM I, Enron North America Corp., and E-Next
Generation LLC.  MM I and NG I have collectively purchased and accepted
each item of Turbine Collateral, no rights of return or rejection exist with
respect to any Turbine Collateral under the applicable original purchase
agreements, and as of the Effective Date the Turbine Collateral is covered by
the applicable warranties from the manufacturer contained in the applicable
original purchase agreements, and such warranties have not expired, been
breached by any Loan Party or otherwise invalidated.  MM I and NG I are collectively the owners of the full, legal
and beneficial title to all of the Turbine Collateral, free and clear of all
Liens.  The Turbine Collateral has
not been placed in service or affixed or installed on any Property and is in
the same condition as when received from the manufacturer, without wear and
tear of any kind.


 


5.32                           Borrowing Base Inventory.  The Borrower has good title to all of the Borrowing Base
Inventory, free and clear of all Liens. 
All of the Borrowing Base Inventory (other than Material and Supplies
Inventory) is stored at real Property locations identified on Schedule 5.32
which are owned or leased by the Borrower, free and clear of all Liens (other
than Permitted Liens).  Upon the
occurrence and during the continuance of a Default, the Agent on behalf of the
Secured Parties will be entitled to freely sell, transfer or otherwise dispose
of the Borrowing Base Inventory included in the Collateral without restriction
of any kind.


 


5.33                           Principal Real Properties.  As of the Closing Date, Schedule 5.33 sets forth a correct
and complete list (categorized by owned or leased Property) of all (i) power
generating Property owned or leased by any Loan Party, (ii) electrical
transmission Property owned or leased by any Loan Party and having a book value
in excess of $1,000,000 and (iii) natural gas storage facilities Property owned
or leased by any Loan Party (collectively, the “Gas Storage Facilities”)
and having a book value in excess of $1,000,000. 
Each of the leases and subleases of real Property described
on Schedule 5.33 is valid and enforceable in accordance with its terms
and is in full force and effect, and no default by any party to any such lease
or sublease exists, except for defaults resulting from the filing of the
Case.  Each Loan Party has good and
indefeasible title in fee simple to the real Property identified on Schedule
5.33 as owned by such Loan Party, or valid leasehold interests in all real
Property designated therein as “leased” by such Loan Party.  No natural gas is stored upon or within Gas
Storage Facilities except pursuant to the applicable Loan Party’s fee or leasehold
Property interests.  Each Loan Party
possesses all material certificates, licenses, authorizations, registrations,
permits and/or approvals necessary for the ownership, operating, leasing and
management of the Gas Storage Facilities, all of which are in full force and
effect and not the subject of any revocation proceedings, undisclosed
amendment, release, suspension, forfeiture and the like.  All material easements, rights of way,
leasehold, and other property interests (collectively, the “Easements”),
all utility and other services (including electrical, telephone, water and
sewage services and facilities), means of transportation, ingress and egress,
facilities, other materials and other rights that are reasonably necessary for
the operation of the Gas Storage Facilities have been procured or are
commercially available to the Gas Storage Facilities at commercially reasonable
rates and, to the extent appropriate, arrangement have been made on
commercially reasonable terms for such Easements, interests, services, means of
transportation and access, facilities, materials and rights.  Each of the


 


56

















 


Easements
is valid and enforceable in accordance with its terms and is in full force and
effect, and no default by any party to any Easement exists.


 


ARTICLE
VI


 


COVENANTS


 


Each Loan Party executing
this Agreement jointly and severally agrees as to all Loan Parties that from
and after the date hereof and until the Facility Termination Date:


 


6.1                                 Financial and Collateral Reporting.  The Borrower will maintain, for itself and each Subsidiary (other
than Excluded Subsidiaries), a system of accounting established and
administered in accordance with GAAP, and will furnish to the Lenders:


 


(a)                                  within ninety days after the close of each Fiscal Year of the
Borrower and its Subsidiaries (other than Excluded Subsidiaries), an
unqualified (other than with respect to the Case or a going concern
qualification) audit report certified by independent certified public accountants
acceptable to the Required Lenders, prepared in accordance with GAAP on a
consolidated and consolidating basis (consolidating statements need not be
certified by such accountants), including balance sheets as of the end of such
Fiscal Year, related profit and loss and reconciliation of surplus statements,
and a statement of cash flows, accompanied by (i) any management letter
prepared by said accountants and (ii) a certificate of said accountants that,
in the course of their examination necessary for their certification of the
foregoing, they have obtained no knowledge of any Default or Unmatured Default
with respect to the covenant set forth in Section 6.29, or if, in the
opinion of such accountants, such a Default or Unmatured Default shall exist,
stating the nature and status thereof;


 


(b)                                 within forty-five days after the close of the first three
quarterly periods of each Fiscal Year of the Borrower and its Subsidiaries
(other than Excluded Subsidiaries), consolidated and consolidating unaudited
balance sheets as at the close of each such Fiscal Quarter and consolidated and
consolidating profit and loss and reconciliation of surplus statements and a
statement of cash flows for the period from the beginning of the applicable
Fiscal Year to the end of such Fiscal Quarter, all certified by its Chief
Financial Officer or Chief Accountant and prepared in accordance with GAAP
(except for exclusion of footnotes and subject to normal year-end audit
adjustments);


 


(c)                                  within twenty days after the close of each Fiscal Month of
the Borrower and its Subsidiaries (other than Excluded Subsidiaries),
consolidated and consolidating unaudited balance sheets as at the close of each
such Fiscal Month and consolidated and consolidating profit and loss and
reconciliation of surplus statements and a statement of cash flows for the
period from the beginning of the applicable Fiscal Year to the end of such
Fiscal Month, all prepared in accordance with GAAP (except for exclusion of
footnotes and subject to normal year-end audit adjustments) and certified by
its Chief Financial Officer or Chief Accountant;


 


(d)                                 [intentionally omitted];


 


(e)                                  together with each of the financial statements required under
clauses (a), (b) and (c) of this Section 6.1, a compliance certificate
in substantially the form of Exhibit D (a “Compliance Certificate”)
signed by the Chief Financial Officer or Chief Accountant of


 


57

















 


the Borrower showing the calculations necessary to
determine compliance with this Agreement and stating that no Default or
Unmatured Default exists, or if any Default or Unmatured Default exists,
stating the nature and status thereof;


 


(f)                                    (i) until such time as the initial Credit Extension shall
have occurred, not later than the seventh Business Day after the end of each
calendar month, as of the period then ended, a Borrowing Base Certificate and
supporting information in connection therewith and (ii) at all times after the
initial Credit Extension shall have occurred, as soon as available but in any
event within three Business Days of the end of each calendar week, as of the
period then ended, a Borrowing Base Certificate and supporting information in
connection therewith (provided that the weekly Borrowing Base
Certificate required by this clause (ii) shall be updated weekly with respect
to invoicing and collection of cash, and monthly with respect to ineligible
Accounts and Borrowing Base Inventory);


 


(g)                                 as soon as available but in any event within seven Business
Days after the end of each calendar month, as of the period then ended, a
detailed aged trial balance of the Borrower’s Accounts (reported separately by
billed and unbilled Account category type) reconciled to the most recently
delivered Borrowing Base Certificate and the weekly “rollforwards” for the
previous month delivered pursuant to clause (h) below, prepared in a manner
reasonably acceptable to the Agent;


 


(h)                                 as soon as available but in any event within three Business
Days of the end of each calendar week, as of the period then ended:


 


(i)                                     a “rollforward” of the Borrower’s Accounts from the
previously delivered month-end aged trial balance delivered pursuant to clause
(g) above, such “rollforward” to consist of a sales journal, a collection
journal and a credit journal reflecting activity for the most recent calendar
week (reported separately by billed and unbilled Account category type) in a
manner reasonably acceptable to the Agent;


 


(ii)                                  a worksheet of calculations prepared by the Borrower to
determine Eligible Billed Accounts, Eligible Unbilled Accounts, Eligible Stored
Gas Inventory, Eligible Working Gas and Fuel Inventory, Eligible Materials and
Supplies Inventory and Eligible Turbine Collateral, such worksheet detailing
the Accounts (reported separately by billed and unbilled Account category
type), Borrowing Base Inventory and Turbine Collateral excluded from Eligible
Billed Accounts, Eligible Unbilled Accounts, Eligible Stored Gas Inventory,
Eligible Working Gas and Fuel Inventory, Eligible Materials and Supplies Inventory
and Eligible Turbine Collateral, respectively, and the reason for such
exclusion; provided  that until the first Credit Extension shall
have occurred the Borrower shall only be required to deliver the information
required by this clause (ii) on or before the seventh Business Day after the
end of each calendar month; and


 


(iii)                               a reconciliation of the Borrower’s Accounts, Borrowing Base
Inventory and Turbine Collateral between the amounts shown in the Borrower’s
and its Subsidiaries’ books and financial statements and the reports delivered
pursuant to clause (i) above;


 


(i)                                     as soon as available but in any event within seven Business
Days after the end of each calendar month, a schedule detailing the Stored Gas
Inventory, Working Gas and Fuel Inventory and Materials and Supplies Inventory
(collectively, the “Borrowing Base


 


58

















 


Inventory”) in form satisfactory to the Agent, (1) by location,
product type, and volume on hand, which Borrowing Base Inventory shall be
valued at the lower of cost (determined on a first-in, first-out basis) or
market and adjusted for Reserves as the Agent has previously indicated to the
Borrower are deemed by the Agent to be appropriate, (2) including a report of
any variances or other results of Borrowing Base Inventory measurements
performed by the Loan Parties since the last Borrowing Base Inventory schedule
(including information regarding sales or other reductions, additions,
depletions, credits issued by any Loan Party and complaints and claims made
against any Loan Party) and (3) reconciled to the Borrowing Base Certificate
delivered as of such date;


 


(j)                                     as soon as available but in any event not later than the
seventh Business Day after the end of each calendar month, as of the month then
ended, a schedule and aging of the Borrower’s and its Subsidiaries (other than
Excluded Subsidiaries) accounts payable;


 


(k)                                  promptly upon the Agent’s request:


 


(i)                                     access to invoices in connection with the invoices issued by
the Borrower in connection with any Accounts, credit memos, shipping and
delivery documents, and other information related thereto;


 


(ii)                                  copies of purchase orders, invoices, and shipping and
delivery documents in connection with any Borrowing Base Inventory, Equipment
or other assets purchased by any Loan Party; and


 


(iii)                               a schedule detailing the balance of all intercompany accounts
of the Borrower and its Subsidiaries;


 


(l)                                     on the first Business Day of the month of January and June, a
certificate of good standing for each Loan Party from the appropriate
governmental officer in its jurisdiction of incorporation, formation, or
organization;


 


(m)                               as soon as possible and in any event within five Business
Days of filing thereof, copies of all tax returns filed by the Borrower or any
Subsidiary (other than Excluded Subsidiaries) with the U.S. Internal Revenue
Service;


 


(n)                                 as soon as possible and in any event within two-hundred and
seventy days after the close of the Fiscal Year of the Borrower, a statement of
the Unfunded Liabilities of each Single Employer Plan, certified as correct by
an actuary enrolled under ERISA;


 


(o)                                 as soon as possible and in any event within ten days after
the Borrower knows that any Reportable Event has occurred with respect to any
Plan, a statement, signed by the Chief Financial Officer or Chief Accountant of
the Borrower, describing said Reportable Event and the action which the
Borrower proposes to take with respect thereto;


 


(p)                                 as soon as possible and in any event within five Business
Days of filing therewith with the PBGC, the U.S. Internal Revenue Service or
any other governmental entity, a copy of each annual report or other filing
with respect to any Plan;


 


(q)                                 as soon as possible and in any event within five Business
Days after receipt by any Loan Party, a copy of (i) any notice or claim to the
effect that any Loan Party is or may be liable to any Person as a result of the
release by any Loan Party, or any other Person of


 


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any toxic or hazardous waste or substance into the
environment and (ii) any notice alleging any violation of any federal, state or
local environmental, health or safety law or regulation by any Loan Party;


 


(r)                                    concurrently with the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports and proxy
statements so furnished;


 


(s)                                  promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports which the
Borrower or any Subsidiary (other than Excluded Subsidiaries) files with the
Securities and Exchange Commission;


 


(t)                                    not later than 5:00 p.m. Chicago time on each Wednesday, the
unaudited weekly cash flow reports of the Borrower and its Subsidiaries (other
than Excluded Subsidiaries) on a consolidated basis and as of the end of such
week, and on a cumulative basis from September 15, 2003 (the “Projections”);


 


(u)                                 not later than 5:00 p.m. Chicago time on each Wednesday, the
Borrower’s forecast of cash receipts and disbursements for the Borrower and its
Subsidiaries (other than Excluded Subsidiaries) for the ensuing 13-week period;
and


 


(v)                                 such other information (including nonfinancial information)
as the Agent or any Lender may from time to time reasonably request.


 


6.2                                 Use of Proceeds.


 


(a)                                  The Borrower will use the proceeds of Credit Extensions under
the Revolving Commitment solely for working capital, other general corporate
purposes of the Borrower and the other Loan Parties (not otherwise prohibited
by this Agreement) and for Permitted Pre-Petition Payments.  The Borrower will use the proceeds of Term
Loans solely to repay the CSFB Loan in full.


 


(b)                                 The Borrower will not, nor will it permit any Loan Party to,
use any of the proceeds of the Credit Extensions to (i) purchase or carry any
Margin Stock in violation of Regulation U, (ii) repay or refinance any
Indebtedness of any Person incurred to buy or carry any Margin Stock, (iii)
acquire any security in any transaction that is subject to Section 13 or
Section 14 of the Securities Exchange Act of 1934 (and the regulations
promulgated thereunder) or (iv) make any Acquisition.


 


6.3                                 Notices.  Each Loan Party will give prompt notice in
writing to the Agent and the Lenders of:


 


(a)                                  the occurrence of any Default or Unmatured Default;


 


(b)                                 any other development, financial or otherwise, which could
reasonably be expected to have a Material Adverse Effect;


 


(c)                                  the assertion by the holder of any post-petition Indebtedness
of the Borrower or Indebtedness of the Borrower assumed in the Case, in each
case in excess of $250,000, that any default exists with respect thereto or
that any Loan Party is not in compliance therewith;


 


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(d)                                 the assertion by the holder of any Indebtedness of any Subsidiary
(other than Excluded Subsidiaries) in excess of $250,000 that any default
exists with respect thereto or that any Subsidiary (other than Excluded
Subsidiaries) is not in compliance therewith;


 


(e)                                  receipt of any written notice that the Borrower or any
Subsidiary (other than Excluded Subsidiaries) is subject to any investigation
by any governmental entity with respect to any potential or alleged violation
of any applicable Environmental Law or of imposition of any Lien against any
Property of any such Person for any liability with respect to damages arising
from, or costs resulting from, any violation of any Environmental Laws;


 


(f)                                    receipt of any notice of litigation commenced or threatened
against the Borrower and not stayed as part of the Case that (i) seeks damages
in excess of $250,000, (ii) seeks injunctive relief, (iii) is asserted or
instituted against any Plan, its fiduciaries or its assets, (iv) alleges
criminal misconduct by the Borrower, (v) alleges the violation of any law
regarding, or seeks remedies in connection with, any Environmental Laws or (vi)
challenges the validity or enforceability of this Agreement or any other Loan
Document;


 


(g)                                 receipt of any notice of litigation commenced or threatened
against any Subsidiary (other than Excluded Subsidiaries) that (i) seeks
damages in excess of $250,000, (ii) seeks injunctive relief, (iii) is asserted
or instituted against any Plan, its fiduciaries or its assets, (iv) alleges
criminal misconduct by any such Person or (v) alleges the violation of any law
regarding, or seeks remedies in connection with, any Environmental Laws;


 


(h)                                 any Lien (other than Permitted Liens) or claim made or
asserted against any of the Collateral;


 


(i)                                     the decision to change, (i) the Borrower’s or any
Subsidiary’s (other than Excluded Subsidiaries) name or type of entity, (ii)
the Borrower’s or any Subsidiary’s (other than Excluded Subsidiaries) articles
or certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by laws, or operating or
other management agreement and (iii) the location where any Collateral is held
or maintained; provided  that, in no event shall the Agent receive
notice of such change less than thirty days prior thereto;


 


(j)                                     commencement of any proceedings against the Borrower or any
Subsidiary (other than Excluded Subsidiaries) contesting any tax, fee,
assessment, or other governmental charge in excess of $250,000;


 


(k)                                  the opening of any new deposit account by the Borrower or any
Subsidiary (other than Excluded Subsidiaries) with any bank or other financial
institution;


 


(l)                                     any loss, damage or destruction to the Collateral in the
amount of $250,000 or more, whether or not covered by insurance;


 


(m)                               any and all default notices received under or with respect to
any leased location or public warehouse where Collateral is located or with
respect to any Easements (which shall be delivered within two Business Days
after receipt thereof);


 


(n)                                 all material amendments to material real estate leases,
together with a copy of each such amendment;


 


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(o)                                 immediately after becoming aware of any pending or threatened
strike, work stoppage, unfair labor practice claim, or other labor dispute
affecting the Borrower or any Subsidiary (other than Excluded Subsidiaries) in
a manner which could reasonably be expected to have a Material Adverse Effect;


 


(p)                                 the fact that the Borrower or any Subsidiary (other than
Excluded Subsidiaries) has entered into a Rate Management Transaction or an
amendment to a Rate Management Transaction, together with copies of all
agreements evidencing such Rate Management Transactions or amendments thereto
(which shall be delivered within two Business Days); and


 


(q)                                 any other matter as Agent may reasonably request.


 


6.4                                 Conduct of Business.  Each Loan Party will, and will cause its Subsidiaries (other than
Excluded Subsidiaries), to:


 


(a)                                  carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted;


 


(b)                                 do all things necessary to remain duly incorporated or
organized, validly existing and (to the extent such concept applies to such
entity) in good standing as a domestic corporation, partnership or limited
liability company in its jurisdiction of incorporation or organization, as the
case may be, and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted;


 


(c)                                  keep adequate books and records with respect to its business
activities in which proper entries, reflecting all financial transactions, are
made in accordance with GAAP and on a basis consistent with the Financial
Statements previously delivered to the Agent in connection with the Effective
Date;


 


(d)                                 at all times maintain, preserve and protect all of its assets
and properties used or useful in the conduct of its business, and keep the same
in good repair, working order and condition in all material respects (taking
into consideration ordinary wear and tear) and from time to time make, or cause
to be made, all necessary or appropriate repairs, replacements and improvements
thereto consistent with industry practices; and


 


(e)                                  transact business only in its name and such corporate and
trade names as are set forth in Schedule 5.12.


 


6.5                                 Taxes.  Each Loan Party will, and will cause its
Subsidiaries (other than Excluded Subsidiaries) to, timely file complete and
correct U.S. Federal and applicable foreign, state and local tax returns
required by law, except if non-filing is permitted by the Bankruptcy Code for
the period during which such non-filing is permitted by the Bankruptcy
Code.  The Borrower will pay when due
all taxes, assessments and governmental charges and levies upon it or its
income, profits, Property or Collateral, arising after the Petition Date or
ordered to be paid by the Bankruptcy Court, except those which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside in accordance with GAAP.  Each Subsidiary (other than Excluded
Subsidiaries) will pay when due all taxes, assessments and governmental charges
and levies upon it or its income, profits, Property or Collateral, except those
which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves have been set aside in accordance with GAAP.


 


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6.6                                 Payment of Indebtedness and
Other Liabilities.  (i) The Borrower will pay or discharge when
due all Material Indebtedness arising after the Petition Date owed by the
Borrower under executory contracts assumed in the Case or entered into after
the Petition Date, and all other liabilities and obligations due and ordered by
the Bankruptcy Court to be paid to materialmen, mechanics, carriers,
warehousemen, and landlords, except that the Borrower may in good faith
contest, by appropriate proceedings diligently pursued, any such obligations
and (ii) each Subsidiary (other than Excluded Subsidiaries) will pay or
discharge when due all Material Indebtedness owed by such Person, and all other
liabilities and obligations due to be paid to materialmen, mechanics, carriers,
warehousemen, and landlords, except that in each of (i) and (ii) above the
applicable Person may in good faith contest, by appropriate proceedings
diligently pursued, any such obligations; provided  that (a)
adequate reserves have been set aside for such liabilities in accordance with
GAAP, (b) such liabilities would not result in aggregate liabilities in excess
of $250,000, (c) no Lien shall be imposed to secure payment of such liabilities
that is superior to the Agent’s Liens securing the Secured Obligations, (d)
none of the Collateral becomes subject to forfeiture or loss as a result of the
contest and (e) such Person shall promptly pay or discharge such contested
liabilities, if any, and shall deliver to the Agent evidence reasonably
acceptable to the Agent of such compliance, payment or discharge, if such
contest is terminated or discontinued adversely to such Person or the
conditions set forth in this proviso are no longer met.


 


6.7                                 Insurance.


 


(a)                                  The Borrower and its Subsidiaries (other than Excluded
Subsidiaries) shall at all times maintain, with financially sound and reputable
carriers having a Financial Strength rating of at least A+ by A.M. Best
Company, insurance against: (i) loss or damage by fire and loss in transit;
(ii) theft, burglary, pilferage, larceny, embezzlement, and other criminal
activities; (iii) business interruption; (iv) general liability and (v) and
such other hazards, as is customary in the business of such Person.  All such insurance shall be in amounts,
cover such assets and be under policies acceptable to the Agent in its
Permitted Discretion.  In the event any
Collateral is located in any area that has been designated by the Federal
Emergency Management Agency as a “Special Flood Hazard Area”, the applicable
Person shall purchase and maintain flood insurance on such Collateral
(including any personal Property which is located on any real Property leased
by such Loan Party within a “Special Flood Hazard Area”).  The amount of all insurance required by this
Section shall at a minimum comply with applicable law, including the Flood
Disaster Protection Act of 1973, as amended. 
All premiums on such insurance shall be paid when due by the applicable
Person, and copies of the policies delivered to the Agent.  Unless the Borrower provides the Agent with
evidence of the insurance coverage required by this Agreement, the Agent may
purchase insurance at the Borrower’s expense to protect the Agent’s and the
Secured Parties’ interests in the Collateral. 
This insurance may, but need not, protect the Borrower’s and its
Subsidiaries interests.  The coverage
that the Agent purchases may not pay any claim that the Borrower or its
Subsidiaries make or any claim that is made against such Person in connection
with the Collateral.  The Borrower may
later cancel any insurance purchased by the Agent, but only after providing the
Agent with evidence that the Borrower or the applicable Subsidiary has obtained
insurance as required by this Agreement. 
If the Agent purchases insurance for the Collateral, the Borrower will
be responsible for the costs of that insurance, including interest and any
other charges the Agent may impose in connection with the placement of the
insurance, until the effective date of the cancellation or expiration of the insurance.  The costs of the insurance may be added to
the Borrower’s total outstanding balance or obligation.  The costs of the insurance may be more than
the cost of insurance the Borrower may be able to obtain on its own.  By purchasing such insurance, the Agent
shall not be deemed to have waived any Default or Unmatured Default arising
from any


 


63

















 


Person’s failure to maintain such insurance or pay any
premiums therefor.  Neither the Borrower
nor any Subsidiary (other than Excluded Subsidiaries) will use or permit any
Property to be used in violation of applicable law or in any manner which might
render inapplicable any insurance coverage.


 


(b)                                 All insurance policies required under Section 6.7(a)
shall name the Agent (for the benefit of the Agent and the other Secured
Parties) as an additional insured or as loss payee (with respect to Property on
which the Agent has the first priority Lien), as applicable, and shall provide
that, or contain loss payable clauses or mortgagee clauses, in form and
substance satisfactory to the Agent, which provide that:


 


(i)                                     all proceeds thereunder with respect to any Collateral shall
be payable to the Agent (with respect to Property on which the Agent has the
first priority Lien);


 


(ii)                                  no such insurance shall be affected by any act or neglect of
the insured or owner of the Property described in such policy; and


 


(iii)                               such policy and loss payable clauses may be canceled,
amended, or terminated only upon at least thirty days prior written notice
given to the Agent.


 


(c)                                  Notwithstanding the foregoing, any insurance or condemnation
proceeds received by the Borrower and its Subsidiaries (other than Excluded
Subsidiaries) shall be immediately forwarded to the Agent (unless the Borrower
or such Subsidiary is contractually obligated to forward such proceeds to
another secured party having a Permitted Lien which is senior to the Lien of
the Agent granted pursuant to the Collateral Documents) and the Agent may, at
its option, apply any such proceeds to the reduction of the Obligations in
accordance with Section 2.15(d), provided  that in the case
of insurance proceeds pertaining to any Person other than the Borrower, such
insurance proceeds shall be applied to the Loans owing by the Borrower. The
Agent may permit or require the Borrower or any Subsidiary (other than Excluded
Subsidiaries) to use such money, or any part thereof, to replace, repair,
restore or rebuild the Collateral in a diligent and expeditious manner with
materials and workmanship of substantially the same quality as existed before
the loss, damage or destruction. 
Notwithstanding the foregoing, if (i) no Default or Unmatured Default
has occurred and is continuing, (ii) the casualty giving rise to such insurance
proceeds could not reasonably be expected to have a Material Adverse Effect and
(iii) such insurance proceeds do not exceed $250,000 in the aggregate, upon the
Borrower’s or the applicable Subsidiary’s request, the Agent shall permit the
Borrower or such Subsidiary to replace, restore, repair or rebuild the
property; provided  that, if the Borrower or such Subsidiary has
not completed or entered into binding agreements to complete such replacement,
restoration, repair or rebuilding within 90 days of such casualty, the Agent
may apply such insurance proceeds to the Obligations in accordance with Section
2.15.  All insurance proceeds that
are to be made available to the Borrower or a Subsidiary to replace, repair,
restore or rebuild the Collateral shall be applied by the Agent to reduce the
outstanding principal balance of the Revolving Loans (which application shall
not result in a permanent reduction of the Revolving Commitment) and upon such
application, the Agent shall establish a Reserve against the Borrowing Base in an
amount equal to the amount of such proceeds so applied.  All insurance proceeds made available to any
Subsidiary to replace, repair, restore or rebuild Collateral shall be deposited
in a cash collateral account.  In either
case, thereafter, such funds shall be made available to the Borrower or the
applicable Subsidiary to provide funds to replace, repair, restore or rebuild
the Collateral as follows:


 


64

















 


(i)                                     Borrower shall request a Revolving Loan or the applicable
Subsidiary shall request a release from the cash collateral account be made in
the amount needed;


 


(ii)                                  so long as the conditions set forth in Section 4.3
have been met, the Revolving Lenders shall make such Revolving Loan or the
Agent shall release funds from the cash collateral account; and


 


(iii)                               in the case of insurance proceeds applied against the
Revolving Loan, the Reserve established with respect to such insurance proceeds
shall be reduced by the amount of such Revolving Loan.


 


6.8                                 Compliance with Laws.  The Borrower and its Subsidiaries (other than Excluded
Subsidiaries) will comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws.


 


6.9                                 Maintenance of Properties
and Intellectual Property Rights.  The Borrower and its Subsidiaries (other than Excluded
Subsidiaries) will do all things necessary to (i) maintain, preserve, protect
and keep its Property in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times and
(ii) obtain and maintain in effect at all times all material franchises,
governmental authorizations, Intellectual Property Rights, licenses and
permits, which are necessary for it to own its Property or conduct its business
as conducted on the Closing Date.  The
Borrower and its Subsidiaries (other than Excluded Subsidiaries) shall timely
and fully pay and perform its obligations under all Easements.


 


6.10                           Inspection.  Each Loan Party will, and will cause each
other Subsidiary (other than Excluded Subsidiaries) to, permit the Agent and
the Lenders, by their respective employees, representatives and agents, from
time to time upon two Business Days’ prior notice as frequently as Agent
reasonably determines to be appropriate, to (a) inspect any of the Property,
the Collateral, and the books and financial records of such Person, (b)
examine, audit and make extracts or copies of the books of accounts and other
financial records of such Person, (c) have access to its properties,
facilities, the Collateral and its advisors, officers, directors and employees
to discuss the affairs, finances and accounts of such Person and (d) review,
evaluate and make test verifications and counts of the Accounts and other
Collateral of such Person.  If a Default
or an Unmatured Default has occurred and is continuing, each Loan Party shall,
and shall cause each other Subsidiary (other than Excluded Subsidiaries) to,
provide such access to the Agent and to each Lender at all times and without
advance notice.  Furthermore, so long as
any Default has occurred and is continuing, each Loan Party shall, and shall
cause each other Subsidiary (other than Excluded Subsidiaries) to, provide the
Agent and each Lender with access to its suppliers.  Each Loan Party shall, and shall cause each other Subsidiary
(other than Excluded Subsidiaries) to, promptly make available to the Agent and
its counsel originals or copies of all books and records that the Agent may
reasonably request. The Loan Parties acknowledge that from time to time the
Agent may prepare and may distribute to the Lenders certain audit reports pertaining
to the Borrower and its Subsidiaries assets for internal use by the Agent and
the Lenders from information furnished to it by or on behalf of the Borrower
and its Subsidiaries, after the Agent has exercised its rights of inspection
pursuant to this Agreement.


 


6.11                           Appraisals.  Whenever a Default or Unmatured Default
exists, and at such other times as the Agent requests, the Loan Parties shall,
at their sole expense, provide the Agent with appraisals or updates thereof of
their Borrowing Base Inventory, Turbine Collateral, other Equipment, real
Property or other Collateral from an appraiser, and prepared on a basis,
satisfactory to the Agent, such appraisals and


 


65

















 


updates to include, without
limitation, information required by applicable law and regulations and by the
internal policies of the Lenders.


 


6.12                           Communications with Accountants.  Each Loan Party executing this Agreement authorizes (a) Agent and
(b) so long as a Default has occurred and is continuing, each Lender, to
communicate directly with its independent certified public accountants and
authorizes and shall instruct those accountants and advisors to communicate to
the Agent and each Lender information relating to any Loan Party with respect
to the business, results of operations and financial condition of any Loan
Party; provided  that, so long as no Default shall have occurred
and be continuing the Borrower shall be provided with the opportunity to be
present during any such communication.


 


6.13                           Collateral Access Agreements
and Real Estate Purchases.  Upon request from the Agent, each Loan Party
shall use commercially reasonable efforts to obtain a Collateral Access
Agreement from the lessor of each leased property, mortgagee of owned property
or bailee with respect to any warehouse, processor or converter facility or
other location where Collateral is stored or located, which agreement or letter
shall provide access rights, contain a waiver or subordination of all Liens or
claims that the landlord, mortgagee or bailee may assert against the Collateral
at that location, and shall otherwise be reasonably satisfactory in form and
substance to the Agent.  After the
Closing Date, no real property or warehouse space shall be leased by any Loan
Party unless and until, if requested by the Agent, a satisfactory Collateral
Access Agreement shall first have been obtained with respect to such location
and if it has not been obtained, any Collateral at that location shall be
excluded from the Borrowing Base subject to such Reserves as may be established
by the Agent.  Each Loan Party shall
timely and fully pay and perform its obligations under all leases and other
agreements with respect to each leased location or third party warehouse where
any Collateral is or may be located.  To
the extent permitted hereunder, if any Loan Party proposes to acquire a fee
ownership interest in real Property after the Closing Date, it shall if
requested by the Agent first provide to the Agent a mortgage or deed of trust
granting Agent a first priority Lien on such real Property, together with
environmental audits, mortgage title insurance commitment, real property
survey, local counsel opinion(s), and, if required by the Agent, supplemental
casualty insurance and flood insurance, and such other documents, instruments
or agreements reasonably requested by Agent, in each case, in form and
substance reasonably satisfactory to the Agent.


 


6.14                           Control Agreements.  Not later than (i) the date which is thirty days after the Closing
Date or (ii) the date the Bankruptcy Court enters the Final Order, whichever
occurs first, the Loan Parties will provide to the Agent a Deposit Account
Control Agreement or a securities account control agreement (each such
securities account control agreement to be in form and substance reasonably
satisfactory to the Agent), as applicable, duly executed on behalf of each
financial institution holding a deposit account or securities account of a Loan
Party as set forth in the Security Agreement; provided  that, the
Agent may, in its discretion, defer delivery of any such Deposit Account
Control Agreement or securities account control agreement, establish a Reserve
with respect to any deposit account or securities account for which the Agent
has not received such an agreement, and require the Loan Party to open and
maintain a new deposit account with a financial institution subject to a
Deposit Account Control Agreement or securities account control agreement.  Until such time as the Loan Parties shall
have provided the Agent with Deposit Account Control Agreements and securities
account control agreements as required by this Section 6.14, the
Borrower shall cause Availability to at all times equal or exceed $25,000,000.


 


6.15                           Additional Collateral;
Further Assurances.  Upon the request of the Agent, each Loan
Party shall (i) grant Liens to the Agent, for the benefit of the Agent and the
Secured Parties, pursuant to such documents as the Agent may reasonably deem
necessary and deliver such property, documents, and instruments as the Agent
may request to perfect the Liens of the Agent in any Property of such Loan
Party which constitutes Collateral, including any parcel of real Property
located in the U.S. owned by any Loan


 


66

















 


Party and (ii) in connection
with the foregoing requirements, or either of them, deliver to the Agent all
items of the type required by Section 4.1 (as applicable).


 


(a)                                  Each Loan Party will cause 100% of the issued and outstanding
Capital Stock of any Person owned by such Loan Party to be subject at all times
to a first priority, perfected Lien in favor of the Agent pursuant to the terms
and conditions of the Orders and the Loan Documents or other security documents
as the Agent shall reasonably request; provided  that with the
written approval of the Agent upon request of the Borrower (such approval to be
in the Agent’s discretion) the pledge of Capital Stock with respect to any
Foreign Subsidiary may be limited to 65% (or such greater percentage that in
the Agent’s determination and discretion, due to a change in an applicable law
after the date hereof, (1) could not reasonably be expected to cause the
undistributed earnings of such Foreign Subsidiary as determined for U.S.
federal income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any
material adverse tax consequences) of the issued and outstanding Capital Stock
entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and
100% of the issued and outstanding Capital Stock not entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2) in each Foreign Subsidiary
directly owned by the Borrower or any Domestic Subsidiary.


 


(b)                                 Without limiting the foregoing, each Loan Party shall execute
and deliver, or cause to be executed and delivered, to the Agent such documents
and agreements, and shall take or cause to be taken such actions as the Agent
may, from time to time, reasonably request to carry out the terms and
conditions of this Agreement and the other Loan Documents.


 


6.16                           Dividends.


 


(a)                                  Neither the Borrower nor any Subsidiaries (other than
Excluded Subsidiaries) will declare or pay any dividends or make any
distributions on its Capital Stock or redeem, repurchase or otherwise acquire
or retire any of its Capital Stock at any time outstanding, except that any
such Person may declare and pay dividends or make distributions to the
Borrower.


 


(b)                                 Neither the Borrower nor any Subsidiaries (other than
Excluded Subsidiaries) shall directly or indirectly enter into or become bound
by any agreement, instrument, indenture or other obligation (other than this
Agreement and the other Loan Documents) that could directly or indirectly restrict,
prohibit or require the consent of any Person with respect to the payment of
dividends or distributions or the making or repayment of intercompany loans by
such Person to the Borrower or any other Loan Party.


 


6.17                           Indebtedness.  The Borrower will not, nor will it permit
any Subsidiary (other than Excluded Subsidiaries) to, create, incur or suffer
to exist any Indebtedness, except:


 


(a)                                  the Obligations;


 


(b)                                 Indebtedness existing on the date hereof and described in Schedule
5.21;


 


(c)                                  purchase money Indebtedness incurred in connection with the
purchase of any Fixed Assets; provided  that, the amount of such
purchase money Indebtedness shall be limited to an amount not in excess of the
purchase price of such Equipment and the aggregate of


 


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all such purchase money Indebtedness incurred after the
Closing Date shall not exceed $1,000,000; and


 


(d)                                 Capitalized Lease Obligations not in excess of $15,000,000
during the term of this Agreement (inclusive of any Capitalized Lease
Obligations set forth on Schedule 5.21).


 


6.18                           Capital Structure.  If all or any part of a Loan Party’s Capital
Stock has been pledged to the Agent, that Loan Party shall not issue additional
Capital Stock. Neither the Borrower nor any Subsidiary (other than Excluded
Subsidiaries) shall engage in any business other than the businesses currently
engaged in by it or businesses reasonably related thereto.


 


6.19                           Merger.  Neither the Borrower nor any Subsidiary
(other than Excluded Subsidiaries) will merge or consolidate with or into any
other Person, except that any Loan Party (other than the Borrower) may merge
with any other Loan Party (other than the Borrower).


 


6.20                           Sale of Assets.  Neither the Borrower nor any Subsidiary
(other than Excluded Subsidiaries) will lease, sell or otherwise dispose of its
Property (including any Capital Stock owned by it) to any other Person, except:


 


(a)                                  sales of inventory in the ordinary course of business;


 


(b)                                 the sale or other disposition of Equipment that is obsolete
or no longer useful in such Person’s business and having a book value not
exceeding $5,000,000 in the aggregate for the Borrower and its Subsidiaries
(other than Excluded Subsidiaries) since the Closing Date;


 


(c)                                  sale of the assets described on Schedule 6.20;


 


(d)                                 sales of assets to the extent any such sale is expressly
approved by an order of the Bankruptcy Court which has not been stayed, vacated
or reversed; and


 


(e)                                  the sale or disposition of other assets having a book value
not exceeding $5,000,000 in the aggregate for the Borrower and its Subsidiaries
(other than Excluded Subsidiaries) since the Closing Date;


 


provided  that all sales or
other dispositions permitted hereby shall be made for fair value and (other
than those permitted by clause (a) above) shall be for consideration
consisting of at least 85% cash; provided  further that sales of
assets of Expanets or Blue Dot shall not be subject to the 85% cash
consideration requirement if such sales are approved by an order of the
Bankruptcy Court which has not been stayed, vacated or reversed.  The Net Cash Proceeds of any sale or
disposition permitted pursuant to this Section 6.20 (other than pursuant
to clause (a) above) shall be delivered to the Agent as required by Section
2.15 and applied to the Obligations as set forth therein.


 


6.21                           Investments and Acquisitions.  Neither the Borrower nor any Subsidiary (other than Excluded
Subsidiaries) will (a) make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, (b) create any Subsidiary, (c) become
or remain a partner in any partnership or joint venture or (d) make any
Acquisition, except:


 


(i)                                     Cash Equivalent Investments;


 


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(ii)                        Investments in Subsidiaries other than Loan Parties existing
as of the Closing Date (but excluding any additional capital contribution or
other additional Investment in such Subsidiary);


 


(iii)                     Investments in Subsidiaries that are Loan Parties in the
ordinary course of business and consistent with past practice; and


 


(iv)                    other Investments in existence on the Closing Date and
described in Schedule 6.21 (but excluding any additional capital
contribution or other additional Investment in such Person or with respect to
such Investment).


 


6.22                           Liens.  Neither the Borrower nor any Subsidiary
(other than Excluded Subsidiaries) will create, incur, or suffer to exist any
Lien in, of, or on the Property of such Person, other than Permitted Liens.


 


6.23                           Change of Corporate Name or Location; Change
of Fiscal Year.  No Loan Party shall (a) change its name as
it appears in official filings in the state of its incorporation or
organization, (b) change its chief executive office, principal place of
business, mailing address, corporate offices or warehouses or locations at
which Collateral is held or stored, or the location of its records concerning
the Collateral as set forth in the Security Agreement, (c) change the type of
entity that it is, (d) change its organization identification number, if any,
issued by its state of incorporation or other organization or (e) change its
state of incorporation or organization, in each case, unless (1) the Agent
shall have received at least thirty days prior written notice of such change
and (2) the Agent shall have either determined that such change will not
adversely affect the validity, perfection or priority of the Agent’s security
interest in the Collateral, or the Agent shall have acknowledged in writing
that any reasonable action requested by the Agent in connection therewith has
been completed or taken (including any action to continue the perfection of any
Liens in favor of the Agent, on behalf of Lenders, in any Collateral), provided
that, any new location shall be in the continental U.S.  Neither the Borrower nor any Subsidiary
(other than Excluded Subsidiaries) shall change its Fiscal Year.


 


6.24                           Affiliate Transactions.  Neither the Borrower nor any Subsidiary (other than Excluded
Subsidiaries) will enter into any transaction (including, without limitation,
the purchase or sale of any Property or service) with, or make any payment or
transfer (including, without limitation, any payment or transfer with respect
to any fees or expenses for management services) to, any Affiliate except in
the ordinary course of business and pursuant to the reasonable requirements of
such Person’s business and upon fair and reasonable terms no less favorable to
such Person than such Person would obtain in a comparable arms length
transaction.


 


6.25                           Amendments to Agreements.  Neither the Borrower nor any Subsidiary (other than Excluded
Subsidiaries) will terminate its articles of incorporation, charter,
certificate of formation, by-laws, operating, management or partnership
agreement or other organizational document in a manner materially adverse to
the Lenders.


 


6.26                           Intentionally omitted.


 


6.27                           Financial Contracts.  Neither the Borrower nor any Subsidiary (other than Excluded
Subsidiaries) shall enter into or remain liable upon any Financial Contract
except Permitted Financial Contracts.


 


6.28                           Capital Expenditures.  Neither the Borrower nor any Subsidiary (other than Excluded
Subsidiaries) shall expend, or be committed to expend, in excess of $82,500,000
for Capital Expenditures


 


69

















 


in the aggregate for the
Borrower and its Subsidiaries (other than Excluded Subsidiaries) for the period
commencing on the Closing Date and continuing through the term of this
Agreement.


 


6.29                           Minimum EBITDAR.  On or before the date which is the earlier of (i) thirty days
after the Effective Date and (ii) the entry of the Final Order by the
Bankruptcy Court, the Borrower and the Required Lenders shall agree on a
monthly minimum EBITDAR financial covenant test, such covenant test to be
measured at the end of each Fiscal Month commencing with the Fiscal Month ended
October 31, 2003, for the period commencing on September 1, 2003 and ending on
the last day of the applicable Fiscal Month. 
Each Loan Party acknowledges and agrees that the agreement of the
Required Lenders to the minimum EBITDAR financial covenant shall be at the sole
and absolute discretion of the Required Lenders and that any failure to agree
on such financial covenant by the date set forth above shall be an immediate
Default.


 


6.30                           [Intentionally omitted.].


 


6.31                           Real Property Purchases. Neither the Borrower nor
any Subsidiary (other than Excluded Subsidiaries) shall purchase a fee simple
ownership, easement, right of way or similar interest in real Property except
in the ordinary course of business consistent with past practice.


 


6.32                           Sale of Accounts.  Neither the Borrower nor any Subsidiary
(other than Excluded Subsidiaries) shall sell or otherwise dispose of any notes
receivable or accounts receivable (other than the Colstrip Accounts (as defined
the Security Agreement)), with or without recourse, except for the write-off or
settlement of accounts in the ordinary course of business consistent with past
practice.


 


6.33                           Contingent Obligations.  Neither the Borrower nor any Subsidiary (other than Excluded
Subsidiaries) will incur any Contingent Obligations except (i) for any guaranty
of Indebtedness or other obligations of the Borrower or any Subsidiary (other
than Excluded Subsidiaries) if such Person could have incurred such
Indebtedness or obligations under this Agreement and (ii) by endorsement of
negotiable instruments for deposit or collection in the ordinary course of
business.


 


6.34                           Chapter 11 Claims.  The Borrower will not incur, create, assume,
suffer to exist or permit any other Superpriority Claim which is pari  passu
with or senior to the claims of the Agent and the Secured Parties against the
Borrower, except the Carve-Out.


 


6.35                           [Intentionally omitted].


 


6.36                           Bankruptcy Court.  The Borrower will use commercially
reasonable efforts to obtain the approval of the Bankruptcy Court of this
Agreement and the other Loan Documents. 
The Borrower will deliver to the Agent, the Agent’s counsel and the
Lenders all material pleadings, motions and other documents filed on behalf of
all of the Loan Parties with the Bankruptcy Court.


 


6.37                           Operating Leases; Sale and Leaseback
Transactions.


 


(a)                                  Neither the Borrower nor any Subsidiary (other than Excluded
Subsidiaries) shall become liable or remain liable as lessee or guarantor or
other surety with respect to any operating lease except that the Borrower and
any Subsidiary (other than Excluded Subsidiaries) may (i) remain liable with
respect to any operating lease entered into prior to the Petition Date and (ii)
become and remain liable with respect to operating leases entered into on or
after the Petition Date so long as the aggregate amount of all rents paid or
accrued under all such operating leases entered into after the Petition Date shall
not exceed $1,000,000 in the aggregate since the Closing Date.


 


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(b)                                 Neither the Borrower nor any Subsidiary (other than Excluded
Subsidiaries) shall enter into any Sale and Leaseback Transaction.


 


6.38                           Prepayment of Indebtedness.  Neither the Borrower nor any Subsidiary (other than Excluded
Subsidiaries) shall, directly or
indirectly, voluntarily purchase, redeem, defease or prepay any principal of,
premium, if any, interest or other amount payable in respect of any
Indebtedness prior to its scheduled maturity, other than (i) the Obligations,
(ii) Permitted Pre-Petition Payments and (iii) Indebtedness secured by a
Permitted Lien if the asset securing such Indebtedness has been sold or
otherwise disposed of in accordance with Section 6.20.


 


6.39                           Turbine Collateral.  The Borrower shall at all times (i) cause the Turbine Collateral
to be free from any Lien (other than the Lien in favor of the Agent for the
benefit of the Secured Parties), (ii) keep the Turbine Collateral located at a
location owned by the Borrower in fee simple on real Property not subject to
any Liens unless the Borrower shall have caused to be delivered to the Agent
such Collateral Access Agreements as the Agent may request and (iii) cause the
Turbine Collateral to be maintained in its original condition as delivered to
MM I from the manufacturer (and not placed in service in any manner).  In addition, the Borrower shall not, and
shall not permit any other Person to, allow the Turbine Collateral to become
installed or affixed in any manner, in part or whole, to any other Property.


 


6.40                           Rating.  The Borrower shall use its best efforts to
obtain a rating for the Revolving Loans and the Term Loans from, at the Agent’s
option, Moody’s, S&P and/or Fitch prior to the Term Loan Commitment
Effective Date, and in any event shall continue to use such best efforts until
the rating(s) are obtained.


 


6.41                           Certain
Post-Closing Covenants


 


(a)                                  On or before the date the Final Order is entered, the Borrower
shall cause each of Canadian-Montana Pipe Line Company and Risk Partners
Assurance, Ltd. to guarantee the Obligations and pledge substantially all of
its assets to secure such Guaranty; provided  that the Borrower
shall not be so obligated if, in the reasonable determination of the Agent in
its sole discretion, such guarantee or pledge shall cause a material cash tax
liability for the Borrower and its Subsidiaries (other than Excluded
Subsidiaries) taken as a whole or otherwise impose a material regulatory or
other material economic burden on the Borrower and its Subsidiaries (other than
Excluded Subsidiaries).


 


(b)                                 On or before October 3, 2003, the Borrower shall (i) take or
cause to be taken such action as is requested by the Agent to cause the Capital
Stock of any Subsidiary pledged as Collateral that
is represented by an “uncertificated security” for purposes of the UCC to be
represented by a “certificated security” for purposes of the UCC and (ii) cause
such certificate or instrument to be delivered to the Agent, indorsed in blank
by an “effective indorsement” (as defined in Section 8-107 of the UCC),
regardless of whether such certificate constitutes a “certificated security”
for purposes of the UCC, and otherwise comply with the terms of the Security Agreement
with respect to such Capital Stock.


 


(c)                                  On or before September 23, 2003, the Agent and the Lenders
shall have received the business plan of the Borrower and its Subsidiaries
(other than Excluded Subsidiaries), which business plan shall include a financial
history on a monthly basis for the Borrower and its Subsidiaries (other than
Excluded Subsidiaries) for the fiscal period ending June 30, 2004 and
projections on a monthly basis for the Fiscal Years ending December 31, 2003
and 2004 (with the projections for Fiscal Year 2003 to be from September 1


 


71

















 


through December 31, 2003), prepared by the Loan Parties and
in form and substance acceptable to the Agent and the Lenders.


 


(d)                                 On or before September 26, 2003, the Borrower shall deliver,
or cause to be delivered, all original stock certificates, notes and
instruments, together with blank undated stock powers (in form reasonably
acceptable to the Agent), with respect to all Pledged Collateral (as defined in
the Security Agreement).


 


(e)                                  On or before October 3, 2003, the Borrower shall cause the
Capital Stock of Risk Partners Assurance, Ltd. to be pledged to the Agent for
the benefit of the Secured Parties pursuant to Collateral Documents (including,
without limitation, a charge or other pledge agreement pursuant to Bermuda law)
in form and substance reasonably satisfactory to the Agent.


 


(f)                                    The Loan Parties will cooperate with the Agent in connection
with the completion of all Lien searches reasonably requested by the Agent.


 


(g)                                 The Loan Parties shall promptly, but in any event within sixty days of
the Effective Date, take all actions necessary to ensure that all material
Patents, Trademarks, and Copyrights pledged pursuant to the Security Agreement,
including, without limitation, those set forth on Exhibit D thereto, are
submitted for registration with the Patent and Trademark Officer under the
current names of the respective entities owning such Patents, Trademarks, and
Copyrights.


 


(h)                                 (i) On or before September 26, 2003, the Loan Parties shall
deliver to the Agent Schedules 1(a), 5.21 and 6.21 to this Agreement and
Exhibit G to the Security Agreement and (ii) on or before October 3, 2003, the
Loan Parties shall deliver to the Agent Schedule 5.32 and 5.33 to this
Agreement and Exhibits A and F to the Security Agreement, each of such
schedules and exhibits to be in form and substance acceptable to the Agent in
its sole discretion, such schedules and exhibits to be annexed to this
Agreement and the Security Agreement pursuant to amendments to this Agreement
and the Security Agreement (such amendments to be in form and substance
satisfactory to the Agent).


 


ARTICLE
VII


 


DEFAULTS


 


The occurrence of any one or more of the
following events shall constitute a “Default” hereunder:


 


(a)                                  any representation or warranty made or deemed made by or on
behalf of any Loan Party to any Lender or the Agent under or in connection with
this Agreement, any other Loan Document, any Credit Extension, or any
certificate or information delivered in connection with any of the foregoing
shall be materially false on the date as of which made;


 


(b)                                 nonpayment, when due (whether upon demand or otherwise), of
any principal, interest, fee, Reimbursement Obligation or any other obligation
owing under any of the Loan Documents;


 


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(c)                                    the
breach by any Loan Party of any of the terms or provisions of Section 6.1,
 6.2, 6.3(a), 6.7, 6.15
through 6.23 or 6.25 through 6.41;


 


(d)                                 the breach by any Loan Party (other than a breach which
constitutes a Default under another Section of this Article VII) of any
of the terms or provisions of (i) Section 6.3 (other than Section
6.3(a)), 6.4 through 6.6, 6.8 through 6.14 or 6.24
of this Agreement which is not remedied within five days after the earlier of
such breach or written notice from the Agent or any Lender or (ii) any other
Section of this Agreement which is not remedied within fifteen days after the
earlier of such breach or written notice from the Agent or any Lender;


 


(e)                                  the occurrence of any “default”, as defined in any Loan
Document (other than this Agreement) or the breach of any of the terms or
provisions of any Loan Document in any material respect (other than this
Agreement), which default or breach continues beyond any period of grace
therein provided;


 


(f)                                    the Borrower shall breach any provision of the Interim Order
or the Final Order;


 


(g)                                 any Subsidiary (other than Excluded Subsidiaries) shall (i)
have an order for relief entered with respect to it under the Bankruptcy Code
as now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Bankruptcy Code as now or hereafter in
effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment
or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an answer or
other pleading denying the material allegations of any such proceeding filed
against it, (v) take any corporate, limited liability company or partnership
action to authorize or effect any of the foregoing actions set forth in this
clause (g) or (vi) fail to contest in good faith any appointment or proceeding
described in clause (h) of this Article VII;


 


(h)                                 a receiver, trustee, examiner, liquidator or similar official
shall be appointed for any Subsidiary (other than Excluded Subsidiaries) or any
Substantial Portion of its Property, or a proceeding described in clause
(g)(iv) of this Article VII shall be instituted against any Subsidiary
(other than Excluded Subsidiaries) and such appointment continues undischarged
or such proceeding continues undismissed or unstayed for a period of sixty
consecutive days;


 


(i)                                     any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of, all or any
portion of the Property of the Borrower or any Subsidiary (other than Excluded
Subsidiaries) which, when taken together with all other Property of any such
Person so condemned, seized, appropriated, or taken custody or control of,
during the twelve month period ending with the month in which any such action
occurs, constitutes a Substantial Portion;


 


(j)                                     any loss, theft, damage or destruction of any item or items
of Collateral or other property of the Borrower or any Subsidiary (other than
Excluded Subsidiaries) occurs which could reasonably be expected to cause a
Material Adverse Effect;


 


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(k)                                  any judgment or order as to a post-petition liability or debt
for the payment of money in excess of $1,000,000 not fully covered by insurance
shall be rendered against the Borrower and the enforcement thereof shall not
have been stayed, or any non-monetary judgment or order with respect to a
post-petition event shall be rendered against the Borrower which does or could
reasonably be expected to result in a Material Adverse Effect, and there shall
be any period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect;


 


(l)                                     any Subsidiary (other than Excluded Subsidiaries) shall fail
within thirty days to pay, bond or otherwise discharge one or more (i)
judgments or orders for the payment of money in excess of $1,000,000 (or the
equivalent thereof in currencies other than U.S. Dollars) in the aggregate, or
nonmonetary judgments or orders which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, which judgments or orders, in
any such case, are not stayed on appeal or otherwise being appropriately
contested in good faith by proper proceedings diligently pursued;


 


(m)                               the Borrower shall fail to make any payment on any
post-petition Indebtedness (other than the Obligations) or any post-petition
Contingent Obligations in respect of Indebtedness of any other Person, and, in
each case, such failure relates to Indebtedness having a principal amount of
$1,000,000 or more (individually or in the aggregate with other Indebtedness to
which this clause (m) would otherwise apply), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise); or (ii) any other event shall occur or condition shall
exist under any agreement or instrument relating to any such post-petition
Indebtedness, if the effect of such event or condition is to accelerate, or
permit the acceleration of, the maturity of such Indebtedness; or (iii) any
such post-petition Indebtedness shall become or be declared to be due and
payable, or required to be prepaid or repurchased (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof;


 


(n)                                 failure of any Subsidiary (other than Excluded Subsidiaries)
to pay when due any Material Indebtedness or a default, breach or other event
occurs under any term, provision or condition contained in any Material
Indebtedness Agreement of any Subsidiary (other than Excluded Subsidiaries),
the effect of which default, event or condition is to cause, or to permit the
holder(s) of such Material Indebtedness or the lender(s) under any Material
Indebtedness Agreement to cause, such Material Indebtedness to become due prior
to its stated maturity or any commitment to lend under any Material
Indebtedness Agreement to be terminated prior to its stated expiration date;
any Material Indebtedness of any Subsidiary (other than Excluded Subsidiaries)
shall be declared to be due and payable or required to be prepaid or
repurchased (other than by a regularly scheduled payment) prior to the stated
maturity thereof; or any Subsidiary (other than Excluded Subsidiaries) shall
not pay, or admit in writing its inability to pay, its debts generally as they
become due;


 


(o)                                 any Change in Control shall occur;


 


(p)                                 the Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $120,000,000 or any Reportable Event shall occur in
connection with any Plan;


 


(q)                                 the Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred withdrawal liability to such


 


74

















 


Multiemployer Plan in an amount which, when aggregated with
all other amounts required to be paid to Multiemployer Plans by the Borrower or
any other member of the Controlled Group as withdrawal liability (determined as
of the date of such notification), exceeds $5,000,000 or requires payments exceeding
$1,000,000 per annum;


 


(r)                                    the Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $5,000,000;


 


(s)                                  it shall be determined (whether by the Bankruptcy Court or by
any other judicial or administrative forum) that the Borrower or any Subsidiary
(other than Excluded Subsidiaries) is liable for the payment of claims arising
out of any failure to comply (or to have complied) with applicable
environmental laws or regulations the payment of which will have a Material
Adverse Effect, and the enforcement thereof shall not have been stayed;


 


(t)                                    any Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply in any
material respect with any of the terms or provisions of the Guaranty to which
it is a party, or any Guarantor shall deny that it has any further liability
under the Guaranty to which it is a party, or shall give notice to such effect;


 


(u)                                 any Collateral Document shall for any reason fail to create a
valid and perfected security interest in any Collateral purported to be covered
thereby with the priority required by the Loan Documents and the Orders, except
as permitted by the terms of any Collateral Document, or any Collateral
Document shall fail to remain in full force or effect or any action shall be
taken to discontinue or to assert the invalidity or unenforceability of any
Collateral Document (including with respect to any bankruptcy or insolvency
proceeding instituted by or against any issuer of Capital Stock constituting
Collateral), or any Loan Party shall fail to comply with any of the terms or
provisions of any Collateral Document;


 


(v)                                 any material provision of any Loan Document for any reason
ceases to be valid, binding and enforceable in accordance with its terms (or
any Loan Party shall challenge the enforceability of any Loan Document or shall
assert in writing (including, without limitation, in any pleading filed in any
court), or engage in any action or inaction based on any such assertion, that
any provision of any of the Loan Documents has ceased to be or otherwise is not
valid, binding and enforceable in accordance with its terms);


 


(w)                               the Case shall be dismissed or converted to a case under
chapter 7 of the Bankruptcy Code or the Borrower shall file a motion or other
pleading seeking the dismissal of the Case under Section 1112 of the Bankruptcy
Code or otherwise; a trustee under chapter 7 or chapter 11 of the Bankruptcy
Code, a responsible officer or an examiner with enlarged powers relating to the
operation of the business (powers beyond those set forth in Section 1106(a)(3)
and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy


 


75

















 


Code shall be appointed in the Case and the order appointing
such trustee, responsible officer or examiner shall not be reversed or vacated
within thirty days after the entry thereof; or an application shall be filed by
the Borrower for the approval of any other Superpriority Claim (other than the
Carve-Out) in the Case which is pari  passu with or senior to the
claims of the Agent and the Lenders against the Borrower, or there shall arise
or be granted any such pari  passu or senior Superpriority Claim;


 


(x)                                   the Bankruptcy Court shall enter an order or orders granting
relief from the automatic stay applicable under Section 362 of the Bankruptcy
Code to the holder or holders of any security interest to permit foreclosure
(or the granting of a deed in lieu of foreclosure or the like) on any assets of
the Borrower which have a value in excess of $100,000 in the aggregate;


 


(y)                                 an order of the Bankruptcy Court shall be entered reversing,
staying for a period in excess of five days, vacating or (without the written
consent of the Agent) otherwise amending, supplementing or modifying any of the
Orders;


 


(z)                                   the Borrower shall make any Pre-Petition Payment other than
Permitted Pre-Petition Payments;


 


(aa)                            the Final Order shall not have been entered by the Bankruptcy
Court on or before the date which is forty-five days after the Petition Date;


 


(bb)                          (i) the Borrower shall fail to pay when due any Operating
Lease Obligation arising after the Petition Date or which has been assumed in
the Case or (ii) any Subsidiary (other than Excluded Subsidiaries) shall fail
to pay when due any Operating Lease Obligation in excess of $1,000,000;


 


(cc)                            nonpayment by the Borrower or any Subsidiary (other than
Excluded Subsidiaries) of any Rate Management Obligation when due or the breach
by the Borrower or any Subsidiary (other than Excluded Subsidiaries) in any material
respect of any term, provision or condition contained in any Rate Management
Transaction or any transaction of the type described in the definition of “Rate
Management Transactions,” whether or not any Lender or Affiliate of a Lender is
a party thereto; or


 


(dd)                          any order, judgment, decree, ruling or similar binding action
is taken by any governmental authority having jurisdiction over the Borrower or
any Subsidiary (other than Excluded Subsidiaries) which lowers, or has the
effect of, lowering the tariff rates charged by the Borrower and its
Subsidiaries (other than Excluded Subsidiaries) to their customers to the
extent any such action could in the reasonable determination of the Required
Lenders have a Material Adverse Effect.


 


ARTICLE
VIII


 


REMEDIES; WAIVERS AND AMENDMENTS


 


8.1                                 Remedies.


 


(a)                                  If any Default occurs, the Agent may in its discretion (and
at the written request of the Required Lenders, shall), and in every such event
and at any time thereafter during the


 


76

















 


continuance of such event, and without further order of or
application to the Bankruptcy Court (but subject to any requirement to give
notice by the terms of the Interim Order or the Final Order, as applicable),
the Agent may, and at the request of the Required Lenders, shall, by notice to
the Borrower (with a copy to counsel to the Borrower, counsel for the Official
Unsecured Creditors’ Committee appointed in the Case and to the United States
Trustee for the District of Delaware), take one or more of the following
actions, at the same or different times: (i) terminate or reduce forthwith the
Aggregate Commitment or the Revolving Commitment; (ii) terminate or suspend the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer to issue Facility LCs, (iii) declare all or any portion of the
Obligations to be due and payable, whereupon such Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives, (iv) upon notice
to the Borrower and in addition to the continuing right to demand payment of
all amounts payable under this Agreement, the Agent may either (1) make demand
on the Borrower to pay, and the Borrower will, forthwith upon such demand and
without any further notice or act, pay to the Agent an amount, in immediately
available funds (which funds shall be held in the Facility LC Collateral
Account), equal to 105% of the Collateral Shortfall Amount or (2) deliver a
Supporting Letter of Credit as required by Section 2.1.2(l), whichever
the Agent may specify in its sole discretion, (v) increase the rate of interest
applicable to the Loans and the LC Fees as set forth in this Agreement and (vi)
exercise any rights and remedies provided to the Agent under the Loan Documents
or at law or equity, including all remedies provided under the UCC.  In addition, subject solely to any
requirement to give notice by the terms of the Interim Order or the Final Order,
as applicable, the automatic stay provided in Section 362 of the Bankruptcy
Code shall be deemed automatically vacated without further action or order of
the Bankruptcy Court and the Agent and the other Secured Parties may exercise
any and all remedies under the Loan Documents and under applicable law
available to the Agent and the other Secured Parties.


 


(b)                                 If, within thirty days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to make Loans
and the obligation and power of the LC Issuer to issue Facility LCs hereunder
as a result of any Default, the Required Lenders (in their sole discretion)
shall so direct, the Agent shall, by notice to the Borrower, rescind and annul
such acceleration and/or termination.


 


(c)                                  If at any time while any Default is continuing, the Agent
determines that the Collateral Shortfall Amount at such time is greater than
zero, the Agent may make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Agent an amount equal to 105% of the Collateral Shortfall Amount, which funds
shall be deposited in the Facility LC Collateral Account.


 


(d)                                 The Agent may at any time or from time to time after funds
are deposited in the Facility LC Collateral Account, apply such funds to the
payment of the Obligations and any other amounts as shall from time to time
have become due and payable by the Borrower to the Lenders or the LC Issuer
under the Loan Documents.


 


(e)                                  At any time while any Default is continuing, neither the
Borrower nor any Person claiming on behalf of or through the Borrower shall
have any right to withdraw any of the funds held in the Facility LC Collateral
Account.  After all of the Secured
Obligations have been indefeasibly paid in full and the Aggregate Commitment
has been terminated,


 


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any funds remaining in the Facility LC Collateral Account
shall be returned by the Agent to the Borrower or paid to whomever may be
legally entitled thereto at such time.


 


8.2                                 Waivers by Loan Parties.  Except as otherwise provided for in this Agreement, by applicable
law or by the Interim Order or Final Order, as applicable, each Loan Party
waives: (a) presentment, demand and protest and notice of presentment,
dishonor, notice of intent to accelerate, notice of acceleration, protest,
default, nonpayment, maturity, release, compromise, settlement, extension or
renewal of any or all commercial paper, accounts, contract rights, documents,
instruments, chattel paper and guaranties at any time held by the Agent on
which any Loan Party may in any way be liable, and hereby ratifies and confirms
whatever the Agent may do in this regard, (b) all rights to notice and a
hearing prior to the Agent’s taking possession or control of, or to the Agent’s
replevy, attachment or levy upon, the Collateral or any bond or security that
might be required by any court prior to allowing the Agent to exercise any of
its remedies, and (c) the benefit of all valuation, appraisal, marshaling and
exemption laws.


 


8.3                                 Amendments.


 


(a)                                  Subject to the provisions of this Section 8.3, no
amendment, waiver or modification of any provision of this Agreement or any
other Loan Document, and no consent with respect to any departure by any Loan
Party therefrom, shall be effective unless the same shall be in writing and
signed by the Required Lenders (or the Agent with the consent in writing of the
Required Lenders) and the Loan Parties and then any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.


 


(b)                                 Notwithstanding Section 8.3(a), no such amendment,
waiver or other modification with respect to this Agreement shall, without the
consent of all of the Lenders affected thereby:


 


(i)                                     extend the final maturity of any Loan to a date after the
Facility Termination Date;


 


(ii)                                  postpone any regularly scheduled payment of principal of any
Loan or reduce or forgive all or any portion of the principal amount of any
Loan or any Reimbursement Obligation or reduce the amount or extend the payment
date for, the mandatory payments required under Article II;


 


(iii)                               reduce the rate or extend the time of payment of interest or
fees payable to the Lenders pursuant to any Loan Document;


 


(iv)                              reduce the percentage or number of Lenders specified in the
definition of Required Lenders;


 


(v)                                 extend the Facility Termination Date;


 


(vi)                              increase the amount of the Aggregate Commitment or the
Commitment of any Lender hereunder (other than pursuant to Section 12.3
or as a result of the occurrence of the Term Loan Commitment Effective Date in
accordance with the terms and conditions of this Agreement);


 


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(vii)                           increase the advance rates set forth in the definition of
Borrowing Base; permit any Loan Party to assign its rights under this
Agreement;


 


(viii)                        amend this Section 8.3;


 


(ix)                                release any material guarantor of any Credit Extension,
except as otherwise permitted herein or in the other Loan Documents; or


 


(x)                                   except as provided in Section 10.15 or any Collateral
Document, release all or substantially all of the Collateral.


 


(c)                                  No amendment of any provision of this Agreement relating to
the Agent or to the Non-Ratable Loans shall be effective without the written
consent of the Agent.  No amendment of
any provision relating to the LC Issuer shall be effective without the written
consent of the LC Issuer.  The Agent may
(i) amend the Commitment Schedule to reflect assignments entered into
pursuant to Section 12.3, (ii) waive payment of the fee required under Section
12.3(c) and (iii) implement any Flex-Pricing Provision contained in any
commitment letter delivered in connection with the transaction which is the
subject of this Agreement without obtaining the consent of any other party to
this Agreement so long as, in the case of any implementation of any
Flex-Pricing Provisions, the Agent’s actions would not require consent of all
of the Lenders pursuant to the foregoing provisions of this Section.


 


8.4                                 Preservation of Rights.  No delay or omission of the Lenders, the LC Issuer or the Agent
to exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Credit Extension notwithstanding the existence of a Default or the
inability of the Borrower to satisfy the conditions precedent to such Credit
Extension shall not constitute any waiver or acquiescence.  Any single or partial exercise of any such
right shall not preclude other or further exercise thereof or the exercise of
any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.3, and
then only to the extent in such writing specifically set forth.  All remedies contained in the Loan Documents
or by law afforded shall be cumulative and all shall be available to the Agent,
the LC Issuer and the Lenders until the Obligations have been paid in full.


 


ARTICLE
IX


 


GENERAL PROVISIONS


 


9.1                                 Survival of Representations.  All representations and warranties of the Loan Parties contained
in this Agreement and the other Loan Documents shall survive the execution and
delivery of the Loan Documents and the making of the Credit Extensions herein
contemplated.


 


9.2                                 Governmental Regulation.  Anything contained in this Agreement to the contrary
notwithstanding, neither the LC Issuer nor any Lender shall be obligated to
extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.


 


9.3                                 Headings.  Section headings in the Loan Documents are
for convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Loan Documents.


 


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9.4                                 Entire Agreement.  The Loan Documents embody the entire
agreement and understanding among the Loan Parties, the Agent, the LC Issuer
and the Lenders and supersede all prior agreements and understandings among the
Loan Parties, the Agent and the Lenders relating to the subject matter thereof
other than those contained in the Fee Letter and any Flex-Pricing Provisions or
“cooperation with syndication” provisions contained in any commitment letter
entered into in connection with the transaction which is the subject of this
Agreement, all of which shall survive and remain in full force and effect
during the term of this Agreement.


 


9.5                                 Several Obligations; Benefits of this
Agreement.  The respective obligations of the Lenders
hereunder are several and not joint and no Lender shall be the partner or agent
of any other Lender (except to the extent to which the Agent is authorized to
act as administrative agent for the Lenders hereunder).  The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder.  This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors and
assigns, provided  however, that the parties hereto expressly
agree that the Arranger shall enjoy the benefits of the provisions of Sections
9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.


 


9.6                                 Expenses; Indemnification.


 


(a)                                  Expenses.  The Borrower shall reimburse the Agent and
the Arranger for any costs, internal charges and out of pocket expenses
(including reasonable attorneys’ fees and time charges of attorneys for the
Agent, which attorneys may be employees of the Agent) paid or incurred by the
Agent or the Arranger in connection with the preparation, negotiation,
execution, delivery, syndication, distribution (including, without limitation,
via the internet or through a service such as Intralinks), review, amendment,
modification, and administration of the Loan Documents.  The Borrower also agrees to reimburse the
Agent, the Arranger, the LC Issuer and the Lenders for any costs, internal
charges and out of pocket expenses (including reasonable attorneys’ fees and
time charges of attorneys for the Agent, the Arranger, the LC Issuer and the
Lenders, which attorneys may be employees of the Agent, the Arranger, the LC
Issuer or the Lenders) paid or incurred by the Agent, the Arranger, the LC
Issuer or any Lender in connection with the collection and enforcement of the
Loan Documents.  Expenses being
reimbursed by the Borrower under this Section include, without limitation,
costs and expenses incurred in connection with:


 


(i)                                     appraisals of all or any portion of the Collateral, each
parcel of real Property or interest in real Property described in any
Collateral Document, which appraisals shall be in conformity with the
applicable requirements of any law or any governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
interpretation thereof, including, without limitation, the provisions of Title
XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989,
as amended, reformed or otherwise modified from time to time, and any rules
promulgated to implement such provisions (including travel, lodging, meals and
other out of pocket expenses for inspections of the Collateral and the
Borrower’s operations by the Agent) plus the Agent’s then customary charge for
field examinations and audits and the preparation of certain reports (reports
showing the results of appraisals, field examinations or audits, and are herein
referred to as the “Reports”) which the Borrower acknowledges may be
prepared by Bank One or another Person from


 


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time to time and which the Borrower agrees may be distributed
to the Lenders by Bank One pertaining to the Borrower’s assets from information
furnished to it by or on behalf of the Borrower, after Bank One has exercised
its rights of inspection pursuant to this Agreement (such charge is currently
$750 per day (or portion thereof) for each Person retained or employed by the
Agent with respect to each field examination or audit);


 


(ii)                                  any amendment, modification, supplement, consent, waiver or
other documents prepared with respect to any Loan Document and the transactions
contemplated thereby;


 


(iii)                               lien and title searches and title insurance;


 


(iv)                              taxes, fees and other charges for recording the Mortgages, filing
financing statements and continuations, and other actions to perfect, protect,
and continue the Agent’s Liens (including costs and expenses paid or incurred
by the Agent in connection with the consummation of the Agreement);


 


(v)                                 sums paid or incurred to take any action required of any Loan
Party under the Loan Documents that such Loan Party fails to pay or take;


 


(vi)                              any litigation, contest, dispute, proceeding or action
(whether instituted by Agent, the LC Issuer, any Lender, any Loan Party or any other
Person and whether as to party, witness or otherwise) in any way relating to
the Collateral, the Loan Documents or the transactions contemplated thereby;
and


 


(vii)                           costs and expenses of forwarding loan proceeds, collecting
checks and other items of payment, and establishing and maintaining the Funding
Account and lock boxes, and costs and expenses of preserving and protecting the
Collateral.


 


The foregoing shall not be construed to limit
any other provisions of the Loan Documents regarding costs and expenses to be
paid by the Borrower.  All of the
foregoing costs and expenses may be charged to the Borrower’s Loan Account as
Revolving Loans or to another deposit account, all as described in Section
2.17(b).


 


(b)                                 Indemnification.  The Borrower hereby further agrees to
indemnify the Agent, the Arranger, the LC Issuer, each Lender, their respective
Affiliates, and each of their directors, officers and employees, on an
after-tax basis, against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all expenses of
litigation or preparation therefor whether or not the Agent, the Arranger, the
LC Issuer any Lender or any Affiliate is a party thereto) which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Credit Extension
hereunder except to the extent that they are determined in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the party seeking indemnification.  The obligations of the Borrower under this Section
9.6 shall survive the termination of this Agreement.


 


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9.7                                 Numbers of Documents.  All statements, notices, closing documents, and requests
hereunder shall be furnished to the Agent with sufficient counterparts so that
the Agent may furnish one to each of the Lenders.


 


9.8                                 Accounting.  Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP in a manner
consistent with that used in preparing the financial statements referred to in Section
5.5. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and the
Borrower, the Agent or the Required Lenders shall so request the Agent, the
Lenders and the Loan Parties shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders), provided  that,
until so amended, such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and the Borrower shall
provide to the Agent and the Lenders reconciliation statements showing the
difference in such calculation, together with the delivery of monthly,
quarterly and annual financial statements required hereunder.


 


9.9                                 Severability of Provisions.  Any provision in any Loan Document that is held to be
inoperative, unenforceable, or invalid in any jurisdiction shall, as to that
jurisdiction, be inoperative, unenforceable, or invalid without affecting the
remaining provisions in that jurisdiction or the operation, enforceability, or
validity of that provision in any other jurisdiction, and to this end the
provisions of all Loan Documents are declared to be severable.


 


9.10                           Nonliability of Lenders.  The relationship between any Loan Party on the one hand and the
Lenders, the LC Issuer and the Agent on the other hand shall be solely that of
debtor and creditor.  Neither the Agent,
the Arranger, the LC Issuer nor any Lender shall have any fiduciary
responsibilities to any Loan Party. 
Neither the Agent, the Arranger, the LC Issuer nor any Lender undertakes
any responsibility to any Loan Party to review or inform such Loan Party of any
matter in connection with any phase of any Loan Party’s business or
operations.  The Loan Parties agree that
neither the Agent, the Arranger, the LC Issuer nor any Lender shall have
liability to any Loan Party (whether sounding in tort, contract or otherwise)
for losses suffered by any Loan Party in connection with, arising out of, or in
any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-appealable
judgment by a court of competent jurisdiction that such losses resulted from
the gross negligence or willful misconduct of the party from which recovery is
sought.  Neither the Agent, the Arranger,
the LC Issuer nor any Lender shall have any liability with respect to, and each
Loan Party hereby waives, releases and agrees not to sue for, any special,
indirect, consequential or punitive damages suffered by any Loan Party in
connection with, arising out of, or in any way related to the Loan Documents or
the transactions contemplated thereby.


 


9.11                           Confidentiality.  Each Lender agrees to hold any confidential
information which it may receive from any Loan Party in connection with this
Agreement in confidence, except for disclosure (a) to its Affiliates and to
other Lenders and their respective Affiliates, (b) to legal counsel,
accountants, and other professional advisors to such Lender or to a Transferee,
(c) to regulatory officials, (d) to any Person as requested pursuant to or as
required by law, regulation, or legal process, (e) to any Person in connection
with any legal proceeding to which such Lender is a party, (f) to such Lender’s
direct or indirect contractual counterparties in swap agreements or to legal
counsel, accountants and other professional advisors to such counterparties,
(g) permitted by Section 12.4 and (h) to rating agencies if requested or
required by such agencies in connection with a rating relating to the Credit
Extensions hereunder. Without limiting Section 9.4, the Borrower agrees
that the terms of this Section 9.11 shall set forth the entire agreement
between the Borrower and each Lender (including the Agent) with respect to any
confidential information previously or hereafter received by such Lender in
connection with this


 


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Agreement, and this Section
9.11 shall supersede any and all prior confidentiality agreements entered
into by such Lender with respect to such confidential information.  Notwithstanding anything contained in any
Loan Document to the contrary, confidential information shall not include, and
each party hereto (and each employee, representative or other agent of any party
hereto) may disclose to any and all Persons, without limitation of any kind,
the U.S. federal income tax treatment and U.S. federal income tax structure of
the transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are or have been provided to such party
relating to such tax treatment or tax structure, and it is hereby confirmed
that each party hereto has been authorized to make such disclosures since the
commencement of discussions regarding the transactions contemplated hereby.


 


9.12                           Nonreliance.  Each Lender hereby represents that it is not
relying on or looking to any Margin Stock for the repayment of the Credit
Extensions provided for herein.


 


9.13                           Disclosure.  Each Loan Party and each Lender hereby
acknowledges and agrees that Bank One and/or its Affiliates from time to time
may hold investments in, make other loans to or have other relationships with
any of the Loan Parties and their respective Affiliates.


 


ARTICLE
X


 


THE AGENT


 


10.1                           Appointment; Nature of Relationship.  Bank One, NA is hereby appointed by each of the Lenders as its
contractual representative (herein referred to as the “Agent”) hereunder
and under each other Loan Document, and each of the Lenders irrevocably
authorizes the Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the other Loan
Documents.  The Agent agrees to act as
such contractual representative upon the express conditions contained in this Article
X.  Notwithstanding the use of the
defined term “Agent,” it is expressly understood and agreed that the Agent
shall not have any fiduciary responsibilities to any Lender by reason of this
Agreement or any other Loan Document and that the Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents.  In its capacity as the Lenders’ contractual
representative, the Agent (a) does not hereby assume any fiduciary duties to
any of the Lenders, (b) is a “representative” of the Lenders within the meaning
of the term “secured party” as defined in the New York Uniform Commercial Code
and (c) is acting as an independent contractor, the rights and duties of which
are limited to those expressly set forth in this Agreement and the other Loan
Documents.  Each of the Lenders hereby
agrees to assert no claim against the Agent on any agency theory or any other
theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.


 


10.2                           Powers.  The Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the Agent by
the terms of each thereof, together with such powers as are reasonably
incidental thereto.  The Agent shall
have no implied duties to the Lenders, or any obligation to the Lenders to take
any action thereunder except any action specifically provided by the Loan
Documents to be taken by the Agent.


 


10.3                           General Immunity.  Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, any other Loan
Party, the LC Issuer or any Lender for any action taken or omitted to be taken
by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except to the extent such action or inaction is
determined in a final non-appealable judgment by a court of competent
jurisdiction to have arisen from the gross negligence or willful misconduct of
such Person.


 


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10.4                           No Responsibility for Credit
Extensions, Recitals, etc.  Neither the Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (a) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV,
except receipt of items required to be delivered solely to the Agent; (d) the
existence or possible existence of any Default or Unmatured Default; (e) the
validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith;
(f) the value, sufficiency, creation, perfection or priority of any Lien in any
Collateral; or (g) the financial condition of any Loan Party or any Affiliate
of any Loan Party.  The Agent shall have
no duty to disclose to the Lenders information that is not required to be
furnished by the Loan Parties to the Agent at such time, but is voluntarily
furnished by any Loan Party to the Agent (either in its capacity as the Agent
or in its individual capacity).


 


10.5                           Action on Instructions of the Lenders.  The Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Required Lenders, and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders.  The
Lenders hereby acknowledge that the Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders. 
The Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.


 


10.6                           Employment of Agents and Counsel.  The Agent may execute any of its duties as Agent hereunder and
under any other Loan Document by or through employees, agents, and attorneys in
fact and shall not be answerable to the Lenders, except as to money or
securities received by the Agent or its authorized agents, for the default or
misconduct of any such agents or attorneys in fact selected by it with
reasonable care.  The Agent shall be
entitled to advice of counsel concerning the contractual arrangement between
the Agent and the Lenders and all matters pertaining to the Agent’s duties
hereunder and under any other Loan Document.


 


10.7                           Reliance on Documents; Counsel. The Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex, electronic mail message, statement, paper
or document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and, in respect to legal matters, upon
the opinion of counsel selected by the Agent, which counsel may be employees of
the Agent.  For purposes of determining
compliance with the conditions specified in Article IV, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Agent shall have received notice from such Lender prior to
the applicable date specifying its objection thereto.


 


10.8                           Agent’s Reimbursement and
Indemnification.  The Lenders agree to reimburse and indemnify
the Agent ratably in proportion to their respective Commitments (or, if the
Commitments have been terminated, in proportion to their Commitments
immediately prior to such termination) (a) for any amounts not reimbursed by
the Borrower or any other Loan Party for which the Agent is entitled to
reimbursement by the Borrower or such other Loan Party under the Loan
Documents, (b) for any other expenses incurred by the Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents (including, without
limitation, for any


 


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expenses incurred by the
Agent in connection with any dispute between the Agent and any Lender or
between two or more of the Lenders) and (c) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith
or the transactions contemplated thereby (including, without limitation, for
any such amounts incurred by or asserted against the Agent in connection with
any dispute between the Agent and any Lender or between two or more of the Lenders),
or the enforcement of any of the terms of the Loan Documents or of any such
other documents, provided  that, (i) no Lender shall be liable for
any of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Agent and (ii) any
indemnification required pursuant to Section 3.5(g) shall,
notwithstanding the provisions of this Section 10.8, be paid by the
relevant Lender in accordance with the provisions thereof.  The obligations of the Lenders under this Section
10.8 shall survive payment of the Obligations and termination of this
Agreement.


 


10.9                           Notice of Default.  The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a “notice of default.”  In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the Lenders; provided,
that, the Agent shall not be liable to any Lender for any failure to do
so, except to the extent that such failure is attributable to the Agent’s gross
negligence or willful misconduct.


 


10.10                     Rights as a Lender.  In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Credit Extensions as any Lender
and may exercise the same as though it were not the Agent, and the term
“Lender” or “Lenders” shall, at any time when the Agent is a Lender, unless the
context otherwise indicates, include the Agent in its individual capacity.  The Agent and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of trust, debt,
equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with any Loan Party in which such Loan
Party is not restricted hereby from engaging with any other Person, all as if
Bank One were not Agent and without any duty to account therefor to Lenders.
Bank One and its Affiliates may accept fees and other consideration from any
Loan Party for services in connection with this Agreement or otherwise without
having to account for the same to Lenders. The Agent in its individual
capacity, is not obligated to remain a Lender.


 


10.11                     Lender Credit Decision.  Each Lender acknowledges that it has, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on the
financial statements prepared by the Loan Parties and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents.  Each Lender also acknowledges that it will,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.


 


10.12                     Successor Agent.  The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of
its intention to resign.  The Agent may
be removed at any time with or without cause by written notice received by the
Agent from the Required Lenders, such removal to be effective on the date
specified by the Required Lenders.  Upon
any such resignation or removal, the Required Lenders shall have the right


 


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to appoint, on behalf of the
Borrower and the Lenders, a successor Agent. 
If no successor Agent shall have been so appointed by the Required
Lenders within thirty days after the resigning Agent’s giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of the
Borrower and the Lenders, a successor Agent. 
Notwithstanding the previous sentence, the Agent may at any time without
the consent of the Borrower, any other Loan Party or any Lender, appoint any of
its Affiliates which is a commercial bank as a successor Agent hereunder.  If the Agent has resigned or been removed
and no successor Agent has been appointed, the Lenders may perform all the
duties of the Agent hereunder and the Borrower shall make all payments in
respect of the Obligations to the applicable Lender and for all other purposes
shall deal directly with the Lenders. 
No successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. 
Any such successor Agent shall be a commercial bank having capital and
retained earnings of at least $100,000,000. 
Upon the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the resigning or removed
Agent.  Upon the effectiveness of the
resignation or removal of the Agent, the resigning or removed Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents.  After the effectiveness of
the resignation or removal of an Agent, the provisions of this Article X
shall continue in effect for the benefit of such Agent in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent
hereunder and under the other Loan Documents. 
In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this Section
10.12, then the term “Prime Rate” as used in this Agreement shall mean the
prime rate, base rate or other analogous rate of the new Agent.


 


10.13                     Delegation to Affiliates.  Each of the Borrower, the other Loan Parties and the Lenders
agree that the Agent may delegate any of its duties under this Agreement to any
of its Affiliates.  Any such Affiliate
(and such Affiliate’s directors, officers, agents and employees) which performs
duties in connection with this Agreement shall be entitled to the same benefits
of the indemnification, waiver and other protective provisions to which the
Agent is entitled under Articles IX and X.


 


10.14                     Execution of Loan Documents.  The Lenders hereby empower and authorize the Agent, on behalf of
the Agent and the Lenders, to execute and deliver to the Loan Parties the Loan
Documents and all related agreements, certificates, documents, or instruments
as shall be necessary or appropriate to effect the purposes of the Loan
Documents.  Each Lender agrees that any
action taken by the Agent or the Required Lenders in accordance with the terms
of this Agreement or the other Loan Documents, and the exercise by the Agent or
the Required Lenders of their respective powers set forth therein or herein,
together with such other powers that are reasonably incidental thereto, shall
be binding upon all of the Lenders.  The
Lenders acknowledge that all of the Obligations hereunder constitute one debt,
secured pari  passu by all of the Collateral.


 


10.15                     Collateral Matters.


 


(a)                                  The Lenders hereby irrevocably authorize the Agent, at its
option and in its sole discretion, to release any Liens granted to the Agent by
the Loan Parties on any Collateral (i) upon the termination of the Aggregate
Commitment, payment and satisfaction in full in cash of all Obligations (other
than Unliquidated Secured Obligations), and the cash collateralization of all
Unliquidated Secured Obligations in a manner satisfactory to each affected
Lender, (ii) constituting Property being sold or disposed of if the Loan Party
disposing of such Property certifies to the Agent that the sale or disposition
is made in compliance with the terms of this Agreement (and the Agent may rely
conclusively on any such certificate, without further inquiry), (iii)
constituting Property in which no Loan Party has at any time during the term of
this Agreement owned any interest, (iv) constituting property leased to a Loan
Party under a lease which has expired or been


 


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terminated in a transaction permitted under this Agreement,
(v) owned by or leased to a Loan Party which is subject to a purchase money
security interest or which is the subject of a Capitalized Lease, in either
case, entered into by such Loan Party pursuant to Section 6.17(c), or
(vi) as required to effect any sale or other disposition of such Collateral in
connection with any exercise of remedies of the Agent and the Lenders pursuant
to Section 8.1.  Upon request by
the Agent at any time, the Lenders will confirm in writing the Agent’s authority
to release any Liens upon particular types or items of Collateral pursuant to
this Section 10.15.  Except as
provided in the preceding sentence, the Agent will not release any Liens on
Collateral without the prior written authorization of the Required Lenders or
if required pursuant to Section 8.3(b)(x) all of the Lenders; provided
that, the Agent may in its discretion, release its Liens on Collateral
valued in the aggregate not in excess of $5,000,000 during the term of this
Agreement without the prior written authorization of any Lender.


 


(b)                                 Upon receipt by the Agent of any authorization required
pursuant to Section 10.15(a) from the Required Lenders or pursuant to Section
8.3(b)(x) from all of the Lenders of the Agent’s authority to release any
Liens upon particular types or items of Collateral, and upon at least five
Business Days prior written request by the Loan Parties, the Agent shall (and
is hereby irrevocably authorized by the Lenders to) execute such documents as
may be necessary to evidence the release of its Liens upon such Collateral; provided
that, (i) the Agent shall not be required to execute any such document
on terms which, in the Agent’s opinion, would expose the Agent to liability or
create any obligation or entail any consequence other than the release of such
Liens without recourse or warranty and (ii) such release shall not in any
manner discharge, affect, or impair the Obligations or any Liens (other than
those expressly being released) upon (or obligations of the Loan Parties in
respect of) all interests retained by the Loan Parties, including the proceeds
of any sale, all of which shall continue to constitute part of the Collateral.


 


(c)                                  The Agent shall have no obligation whatsoever to any of the
Lenders to assure that the Collateral exists or is owned by the Loan Parties or
is cared for, protected, or insured or has been encumbered, or that the Liens
granted to the Agent therein have been properly or sufficiently or lawfully
created, perfected, protected, or enforced or are entitled to any particular
priority, or to exercise at all or in any particular manner or under any duty
of care, disclosure, or fidelity, or to continue exercising, any of the rights,
authorities, and powers granted or available to the Agent pursuant to any of
the Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission, or event related thereto, the Agent may act
in any manner it may deem appropriate, in its sole discretion given the Agent’s
own interest in the Collateral in its capacity as one of the Lenders and that
the Agent shall have no other duty or liability whatsoever to any Lender as to
any of the foregoing.


 


(d)                                 Each Lender hereby appoints each other Lender as its agent
for the purpose of perfecting Liens, for the benefit of the Agent and the
Lenders, in assets which, in accordance with Article 9 of the UCC or any other
applicable law can be perfected only by possession.  Should any Lender (other than the Agent) obtain possession of any
such Collateral, such Lender shall notify the Agent thereof, and, promptly upon
the Agent’s request therefor shall deliver such Collateral to the Agent or
otherwise deal with such Collateral in accordance with the Agent’s
instructions.


 


(e)                                  Each Lender hereby agrees as follows: (i) such Lender is
deemed to have requested that the Agent furnish such Lender, promptly after it
becomes available, a copy of each


 


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Report prepared by or on behalf of the Agent; (ii) such
Lender expressly agrees and acknowledges that neither Bank One nor the Agent
(A) makes any representation or warranty, express or implied, as to the
completeness or accuracy of any Report or any of the information contained
therein or (B) shall be liable for any information contained in any Report;
(iii) such Lender expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that the Agent, Bank One, or any other
party performing any audit or examination will inspect only specific
information regarding the Loan Parties and will rely significantly upon the
Loan Parties’ books and records, as well as on representations of the Loan
Parties’ personnel and that Bank One undertakes no obligation to update,
correct or supplement the Reports; (iv) such Lender agrees to keep all Reports
confidential and strictly for its internal use, not share the Report with any
Loan Party and not to distribute any Report to any other Person except as
otherwise permitted pursuant to this Agreement; and (v) without limiting the
generality of any other indemnification provision contained in this Agreement,
such Lender agrees (W) that neither Bank One nor the Agent shall be liable to
such Lender or any other Person receiving a copy of the Report for any inaccuracy
or omission contained in or relating to a Report, (X) to conduct its own due
diligence investigation and make credit decisions with respect to the Loan
Parties based on such documents as such Lender deems appropriate without any
reliance on the Reports or on the Agent or Bank One, (Y) to hold the Agent and
any such other Person preparing a Report harmless from any action the
indemnifying Lender may take or conclusion the indemnifying Lender may reach or
draw from any Report in connection with any Credit Extensions that the
indemnifying Lender has made or may make to the Loan Parties, or the
indemnifying Lender’s participation in, or the indemnifying Lender’s purchase
of, any Obligations and (Z) to pay and protect, and indemnify, defend, and hold
the Agent and any such other Person preparing a Report harmless from and
against, the claims, actions, proceedings, damages, costs, expenses, and other
amounts (including reasonable attorney fees) incurred by the Agent and any such
other Person preparing a Report as the direct or indirect result of any third
parties who might obtain all or part of any Report through the indemnifying
Lender.


 


10.16                     Co-Agents, Documentation Agent, Syndication
Agent, etc.  Neither any of the Lenders identified in this Agreement as a “co-agent”
(if any) nor the Documentation Agent or the Syndication Agent (in each case, if
any) shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as such.  Without limiting the foregoing, none of such
Lenders shall have or be deemed to have a fiduciary relationship with any
Lender.  Each Lender hereby makes the
same acknowledgments with respect to such Lenders as it makes with respect to
the Agent in Section 10.11.


 


ARTICLE
XI


 


SETOFF; RATABLE PAYMENTS


 


11.1                           Setoff.  In addition to, and without limitation of,
any rights of the Agent, the LC Issuer or the Lenders under applicable law,
upon the occurrence and during the continuance of any Default, each of the
Agent, the LC Issuer and each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law and without further order
of or application to the Bankruptcy Court, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by the Agent, the LC Issuer and
each such Lender to or for the credit or the account of the Borrower or any
Guarantor against any and all of the obligations of such Borrower or Guarantor
now or hereafter existing under the Loan Documents, irrespective of whether or
not such Bank shall have made any demand under any Loan Document and although
such obligations


 


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may not have been
accelerated.  The rights of the Agent,
the LC Issuer and each Lender under this Section 11.1 are in addition to
other rights and remedies which such Agent, LC Issuer or Lender may have upon
the occurrence and during the continuance of any Default.


 


11.2                           Ratable Payments.  If any Lender, whether by setoff or
otherwise, has payment made to it upon its Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5)
in a greater proportion than that received by any other Lender, such Lender
agrees, promptly upon demand, to purchase a portion of the Aggregate Credit
Exposure held by the other Lenders so that after such purchase each Lender will
hold its Pro Rata Share of the Aggregate Credit Exposure.  If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Secured Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to respective Pro Rata Share of the Aggregate
Credit Exposure.  In case any such
payment is disturbed by legal process, or otherwise, appropriate further adjustments
shall be made.


 


ARTICLE XII


 


BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS


 


12.1                           Successors and Assigns.  The terms and provisions of the Loan Documents shall be binding
upon and inure to the benefit of the Loan Parties and the Lenders and their
respective successors and assigns permitted hereby, except that (a) the Loan
Parties shall not have the right to assign their rights or obligations under
the Loan Documents without the prior written consent of each Lender, (b) any
assignment by any Lender must be made in compliance with Section 12.3,
and (c) any transfer by Participation must be made in compliance with Section
12.2.  Any attempted assignment or
transfer by any party not made in compliance with this Section 12.1
shall be null and void, unless such attempted assignment or transfer is treated
as a participation in accordance with Section 12.2.  The parties to this Agreement acknowledge
that clause (b) of this Section 12.1 relates only to absolute
assignments and this Section 12.1 does not prohibit assignments creating
security interests, including, without limitation, (x) any pledge or assignment
by any Lender of all or any portion of its rights under this Agreement and any
Note to a Federal Reserve Bank or (y) in the case of a Lender which is a Fund,
any pledge or assignment of all or any portion of its rights under this
Agreement and any Note to its trustee in support of its obligations to its
trustee; provided  however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. 
The Agent may treat the Person which made any Credit Extension or which
holds any Note as the owner thereof for all purposes hereof unless and until
such Person complies with Section 12.3; provided  however,
that the Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Credit Extension or which holds any
Note to direct payments relating to such Credit Extension or Note to another
Person.  Any assignee of the rights to
any Credit Extension or any Note agrees by acceptance of such assignment to be
bound by all the terms and provisions of the Loan Documents.  Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Credit Extension (whether or not a
Note has been issued in evidence thereof), shall be conclusive and binding on
any subsequent holder or assignee of the rights to such Credit Extension.


 


12.2                           Participations.


 


(a)                                  Permitted Participants; Effect.  Any Lender may at any time sell to one or
more banks or other entities (“Participants”) participating interests in
any Credit Exposure of such Lender, any Note held by such Lender, any
Commitment of such Lender or any other


 


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interest of such Lender under the Loan Documents.  In the event of any such sale by a Lender of
participating interests to a Participant, such Lender’s obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Credit Exposure and the
holder of any Note issued to it in evidence thereof for all purposes under the
Loan Documents, all amounts payable by the Borrower under this Agreement shall
be determined as if such Lender had not sold such participating interests, and
the Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under the Loan
Documents.


 


(b)                                 Voting Rights.  Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Credit Extension or Commitment in
which such Participant has an interest which would require consent of all of
the Lenders pursuant to the terms of Section 8.3 or of any other Loan
Document.


 


(c)                                  Benefit of Certain Provisions.  Each Loan Party agrees that each Participant
shall be deemed to have the right of setoff provided in Section 11.1 in
respect of its participating interest in amounts owing under the Loan Documents
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided  that,
each Lender shall retain the right of setoff provided in Section 11.1
with respect to the amount of participating interests sold to each
Participant.  The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 11.2 as if each Participant were a
Lender.  The Borrower further agrees
that each Participant shall be entitled to the benefits of Sections 3.1,
3.2, 3.4 and 3.5 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to Section 12.3, provided
that, (i) a Participant shall not be entitled to receive any greater
payment under Section 3.1, 3.2 or 3.5 than the Lender who
sold the participating interest to such Participant would have received had it
retained such interest for its own account, unless the sale of such interest to
such Participant is made with the prior written consent of the Borrower, and
(ii) any Participant not incorporated under the laws of the U.S. or any state
thereof agrees to comply with the provisions of Section 3.5 to the same
extent as if it were a Lender.


 


12.3                           Assignments.


 


(a)                                  Permitted Assignments.  Any Lender may at any time assign to one or
more banks or other entities (“Purchasers”) all or any part of its
rights and obligations under the Loan Documents.  Such assignment shall be substantially in the form of Exhibit
E (an “Assignment Agreement”). 
Each such assignment with respect to a Purchaser which is not a Lender
or an Affiliate of a Lender or an Approved Fund shall either be in an amount
equal to the entire applicable Commitment and Credit Extensions of the assigning
Lender or  (unless the Agent otherwise
consents) be in an aggregate amount not less than $5,000,000 in the case of any
assignment of a Revolving Commitment and $1,000,000 in the case of any
assignment of a Term Loan or Term Loan Commitment.  The amount of the assignment shall be based on the Commitment or
outstanding Credit Extensions (if the Commitment has been terminated) subject
to the assignment, determined as of the


 


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date of such assignment or as of the “Trade Date,” if the
“Trade Date” is specified in the assignment.


 


(b)                                 Consents.  No consent of the Borrower shall be required
prior to an assignment becoming effective. 
The consent of the Agent shall be required prior to an assignment becoming
effective unless the Purchaser is a Lender with a Revolving Commitment (in the
case of an assignment of a Revolving Commitment) or is a Lender, an Affiliate
of a Lender or an Approved Fund (in the case of an assignment of any other
Commitment or Loans).  The consent of
the LC Issuer shall be required prior to an assignment of a Revolving
Commitment becoming effective unless the Purchaser is a Lender with a Revolving
Commitment.  Any consent required under
this Section 12.3(b) shall not be unreasonably withheld or delayed.


 


(c)                                  Effect; Effective Date.  Upon (i) delivery to the Agent of a duly
executed Assignment Agreement, together with any consents required by Sections
12.3(a) and 12.3(b), and (ii) payment of a $3,500 fee to the Agent
for processing such assignment (unless such fee is waived by the Agent), such
Assignment Agreement shall become effective on the effective date specified by
the Agent in such Assignment Agreement. 
The Assignment Agreement shall contain a representation by the Purchaser
to the effect that none of the consideration used to make the purchase of the
Commitment and Credit Exposure under the applicable Assignment Agreement
constitutes “plan assets” as defined under ERISA and that the rights and
interests of the Purchaser in and under the Loan Documents will not be “plan
assets” under ERISA.  On and after the
effective date of such Assignment Agreement, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by or on behalf of the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as if it
were an original party thereto, and the transferor Lender shall be released
with respect to the Commitment and Credit Exposure assigned to such Purchaser
without any further consent or action by the Borrower, the Lenders or the
Agent.  In the case of an Assignment
Agreement covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a Lender hereunder but shall
continue to be entitled to the benefits of, and subject to, those provisions of
this Agreement and the other Loan Documents which survive payment of the
Obligations and termination of the applicable agreement.  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section
12.3 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with Section
12.2.  Upon the consummation of any
assignment to a Purchaser pursuant to this Section 12.3(c), the
transferor Lender, the Agent and the Borrower shall, if the transferor Lender
or the Purchaser desires that its Loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes are issued
to such transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts reflecting
their respective Commitments, as adjusted pursuant to such assignment.


 


(d)                                 Register.  The Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at one of its offices in the U.S. a
copy of each Assignment Agreement delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Credit Extensions and interest thereon owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Agent and the


 


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Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.


 


12.4                           Dissemination of Information.  Each Loan Party authorizes each Lender to disclose to any
Participant or Purchaser or any other Person acquiring an interest in the Loan
Documents by operation of law (each a “Transferee”) and any prospective
Transferee any and all information in such Lender’s possession concerning the
creditworthiness of the Borrower and its Subsidiaries, including without
limitation any information contained in any Reports; provided  that,
each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.


 


12.5                           Tax Treatment.  If any interest in any Loan Document is
transferred to any Transferee which is not incorporated under the laws of the
U.S. or any state thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply with the
provisions of Section 3.5(d).


 


12.6                           Assignment by LC Issuer.  Notwithstanding anything contained herein, if at any time Bank
One assigns all of its Revolving Commitment and Revolving Loans pursuant to Section
12.3, Bank One may, upon thirty days’ notice to the Borrower and the
Lenders, resign as LC Issuer.  In the
event of any such resignation as LC Issuer, the Borrower shall be entitled to
appoint from among the Lenders a successor LC Issuer hereunder; provided
however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Bank One as LC Issuer.  If Bank One resigns as LC Issuer, it shall
retain all the rights and obligations of the LC Issuer hereunder with respect
to the Facility LCs outstanding as of the effective date of its resignation as
LC Issuer and all LC Obligations with respect thereto (including the right to
require the Lenders to make Revolving Loans or fund risk participations in
outstanding Reimbursement Obligations pursuant to Section 2.1.2(d)).


 


ARTICLE XIII


 


NOTICES


 


13.1                           Notices; Effectiveness;
Electronic Communication.


 


(a)                                  Notices Generally.  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in paragraph (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier
as follows:


 


(i)                                     if to any Loan Party, at its address or telecopier number set
forth on the signature page hereof;


 


(ii)                                  if to the Agent, at its address or telecopier number set
forth on the signature page hereof;


 


(iii)                               if to the LC Issuer, at its address or telecopier number set
forth on the signature page hereof;


 


(iv)                              if to a Lender, at its address or telecopier number set forth
in its Administrative Questionnaire.


 


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Notices sent by hand or overnight courier
service, or mailed by certified or registered mail, shall be deemed to have
been given when received; notices sent by telecopier shall be deemed to have
been given when sent (except that, if not given during normal business hours
for the recipient, shall be deemed to have been given at the opening of
business on the next Business Day for the recipient).  Notices delivered through electronic communications to the extent
provided in Section 13.1(b) shall be effective as provided in said Section
13.1(b).


 


(b)                                 Electronic Communications.  Notices and other communications to the
Lenders and the LC Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and internet or intranet websites) pursuant to
procedures approved by the Agent or as otherwise determined by the Agent, provided
that, the foregoing shall not apply to notices to any Lender or the LC
Issuer pursuant to Article II if such Lender or the LC Issuer, as
applicable, has notified the Agent that it is incapable of receiving notices
under such Article by electronic communication.  The Agent or any Loan Party may, in its respective discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it or as it otherwise
determines, provided  that such determination or approval may be
limited to particular notices or communications. Notwithstanding the foregoing,
in every instance, the Borrower shall be required to provide paper copies of
the Compliance Certificates required by Section 6.1(e) to the Agent.


 


Unless the Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be deemed
received upon the sender’s receipt of an acknowledgement from the intended
recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided  that if
such notice or other communication is not given during the normal business
hours of the recipient, such notice or communication shall be deemed to have
been given at the opening of business on the next Business Day for the
recipient, and (ii) notices or communications posted to an Internet or intranet
website shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website
address therefor.


 


13.2                           Change of Address, Etc.  Any party hereto may change its address or telecopier number for
notices and other communications hereunder by notice to the other parties
hereto.


 


ARTICLE XIV


 


COUNTERPARTS


 


This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one agreement,
and any of the parties hereto may execute this Agreement by signing any such
counterpart.  This Agreement shall be
effective when it has been executed by the Loan Parties, the Agent, the LC
Issuer and the Lenders, and each party has notified the Agent by facsimile transmission
or telephone that it has taken such action.


 


ARTICLE XV


 


GUARANTY


 


15.1                           Guaranty. Each
Guarantor hereby agrees that it is jointly and severally liable for, and, as
primary obligor and not merely as surety, absolutely and unconditionally
guarantees to the Secured


 


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Parties the prompt payment
when due, whether at stated maturity, upon acceleration or otherwise, and at
all times thereafter, of the Secured Obligations and all costs and expenses including,
without limitation, all court costs and attorneys’ and paralegals’ fees
(including allocated costs of in-house counsel and paralegals) and expenses
paid or incurred by any such Secured Parties in endeavoring to collect all or
any part of the Secured Obligations from, or in prosecuting any action against,
the Borrower, any Guarantor or any other guarantor of all or any part of the
Secured Obligations (such costs and expenses, together with the Secured
Obligations, collectively the “Guaranteed Obligations”). Each Guarantor
further agrees that the Guaranteed Obligations may be extended or renewed in
whole or in part without notice to or further assent from it, and that it
remains bound upon its guarantee notwithstanding any such extension or renewal.


 


15.2                           Guaranty of Payment.  This Guaranty is a guaranty of payment and not of collection.
Each Guarantor waives any right to require any Secured Party to sue the
Borrower, any Guarantor, any other guarantor, or any other person obligated for
all or any part of the Guaranteed Obligations, or otherwise to enforce its
payment against any collateral securing all or any part of the Guaranteed
Obligations.


 


15.3                           No Discharge or Diminishment
of Guaranty.


 


(a)                                  Except as otherwise provided for herein and to the extent
provided for herein, the obligations of each Guarantor hereunder are
unconditional and absolute and not subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment
in full in cash of the Guaranteed Obligations), including:


 


(i)                                     any claim of waiver, release, extension, renewal, settlement,
surrender, alteration, or compromise of any of the Guaranteed Obligations, by
operation of law or otherwise;


 


(ii)                                  any change in the corporate existence, structure or ownership
of the Borrower or any other guarantor of or other person liable for any of the
Guaranteed Obligations;


 


(iii)                               any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower, any Guarantor, or any other guarantor of or
other person liable for any of the Guaranteed Obligations, or their assets or
any resulting release or discharge of any obligation of the Borrower, any
Guarantor, or any other guarantor of or other person liable for any of the
Guaranteed Obligations; or


 


(iv)                              the existence of any claim, setoff or other rights which any
Guarantor may have at any time against the Borrower, any Guarantor, any other
guarantor of the Guaranteed Obligations, the Agent, the LC Issuer, any Lender,
or any other person, whether in connection herewith or in any unrelated
transactions.


 


(b)                                 The obligations of each Guarantor hereunder are not subject
to any defense or setoff, counterclaim, recoupment, or termination whatsoever
by reason of the invalidity, illegality, or unenforceability of any of the
Guaranteed Obligations or otherwise, or any provision of applicable law or
regulation purporting to prohibit payment by the Borrower, any Guarantor or any
other guarantor of or other person liable for any of the Guaranteed Obligations,
of the Guaranteed Obligations or any part thereof.


 


94

















 


(c)                                  Further, the obligations of any Guarantor hereunder are not
discharged or impaired or otherwise affected by:


 


(i)                                     the failure of any Secured Party to assert any claim or
demand or to enforce any remedy with respect to all or any part of the
Guaranteed Obligations;


 


(ii)                                  any waiver or modification of or supplement to any provision
of any agreement relating to the Guaranteed Obligations;


 


(iii)                               any release, non-perfection, or invalidity of any indirect or
direct security for the obligations of the Borrower for all or any part of the
Guaranteed Obligations or any obligations of any other guarantor of or other
person liable for any of the Guaranteed Obligations;


 


(iv)                              any action or failure to act by any Secured Party with
respect to any collateral securing any part of the Guaranteed Obligations; or


 


(v)                                 any default, failure or delay, willful or otherwise, in the
payment or performance of any of the Guaranteed Obligations, or any other
circumstance, act, omission or delay that might in any manner or to any extent
vary the risk of such Guarantor or that would otherwise operate as a discharge
of any Guarantor as a matter of law or equity (other than the indefeasible
payment in full in cash of the Guaranteed Obligations).


 


15.4                           Defenses Waived.  To the fullest extent permitted by
applicable law, each Guarantor hereby waives any defense based on or arising
out of any defense of the Borrower or any Guarantor or the unenforceability of
all or any part of the Guaranteed Obligations from any cause, or the cessation
from any cause of the liability of the Borrower or any Guarantor, other than
the indefeasible payment in full in cash of the Guaranteed Obligations. Without
limiting the generality of the foregoing, each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and, to the fullest extent
permitted by law, any notice not provided for herein, as well as any
requirement that at any time any action be taken by any person against the
Borrower, any Guarantor, any other guarantor of any of the Guaranteed
Obligations, or any other person.  The
Agent may, at its election, foreclose on any Collateral held by it by one or
more judicial or nonjudicial sales, accept an assignment of any such Collateral
in lieu of foreclosure or otherwise act or fail to act with respect to any
collateral securing all or a part of the Guaranteed Obligations, compromise or
adjust any part of the Guaranteed Obligations, make any other accommodation
with the Borrower, any Guarantor, any other guarantor or any other person
liable on any part of the Guaranteed Obligations or exercise any other right or
remedy available to it against the Borrower, any Guarantor, any other guarantor
or any other person liable on any of the Guaranteed Obligations, without
affecting or impairing in any way the liability of such Guarantor under this
Guaranty except to the extent the Guaranteed Obligations have been fully and
indefeasibly paid in cash.  To the
fullest extent permitted by applicable law, each Guarantor waives any defense
arising out of any such election even though that election may operate,
pursuant to applicable law, to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of any Guarantor against the Borrower,
any other guarantor or any other person liable on any of the Guaranteed
Obligations, as the case may be, or any security.


 


15.5                           Rights of Subrogation.  No Guarantor will assert any right, claim or cause of action,
including, without limitation, a claim of subrogation, contribution or
indemnification that it has against


 


95

















 


the Borrower, any Guarantor,
any person liable on the Guaranteed Obligations, or any collateral, until the
Loan Parties and the Guarantors have fully performed all their obligations to
the Secured Parties.


 


15.6                           Reinstatement; Stay of Acceleration.  If at any time any payment of any portion of the Guaranteed
Obligations is rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, or reorganization of the Borrower or otherwise, each
Guarantor’s obligations under this Guaranty with respect to that payment shall
be reinstated at such time as though the payment had not been made and whether
or not the Secured Parties are in possession of this Guaranty. If acceleration
of the time for payment of any of the Guaranteed Obligations is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower, all such amounts
otherwise subject to acceleration under the terms of any agreement relating to
the Guaranteed Obligations shall nonetheless be payable by the Guarantors
forthwith on demand by any Secured Party.


 


15.7                           Information.  Each Guarantor assumes all responsibility
for being and keeping itself informed of the Borrower’s financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
each Guarantor assumes and incurs under this Guaranty, and agrees that no
Secured Party shall have any duty to advise any Guarantor of information known
to it regarding those circumstances or risks.


 


15.8                           Termination.  The Lenders may continue to make loans or
extend credit to the Borrower based on this Guaranty until five days after it
receives written notice of termination from any Guarantor.  Notwithstanding receipt of any such notice,
each Guarantor will continue to be liable to the Secured Parties for any Guaranteed
Obligations created, assumed or committed to prior to the fifth day after
receipt of the notice, and all subsequent renewals, extensions, modifications
and amendments with respect to, or substitutions for, all or any part of that
Guaranteed Obligations.


 


15.9                           Taxes.  The obligations of the Borrower set forth in
Section 3.5 shall apply to each Guarantor as if it were the Borrower.


 


15.10                     Severability.  The provisions of this Guaranty are
severable, and in any action or proceeding involving any state corporate law,
or any state, federal or foreign bankruptcy, insolvency, reorganization or
other law affecting the rights of creditors generally, if the obligations of
any Guarantor under this Guaranty would otherwise be held or determined to be
avoidable, invalid or unenforceable on account of the amount of such
Guarantor’s liability under this Guaranty, then, notwithstanding any other
provision of this Guaranty to the contrary, the amount of such liability shall,
without any further action by the Guarantors or any Secured Party, be
automatically limited and reduced to the highest amount that is valid and
enforceable as determined in such action or proceeding (such highest amount
determined hereunder being the relevant Guarantor’s “Maximum Liability”).  This Section with respect to the Maximum
Liability of each Guarantor is intended solely to preserve the rights of the
Secured Parties to the maximum extent not subject to avoidance under applicable
law, and no Guarantor nor any other person or entity shall have any right or
claim under this Section with respect to such Maximum Liability, except to the
extent necessary so that the obligations of any Guarantor hereunder shall not
be rendered voidable under applicable law. Each Guarantor agrees that the
Guaranteed Obligations may at any time and from time to time exceed the Maximum
Liability of each Guarantor without impairing this Guaranty or affecting the
rights and remedies of the Secured Parties hereunder, provided  that,
nothing in this sentence shall be construed to increase any Guarantor’s
obligations hereunder beyond its Maximum Liability.


 


15.11                     Contribution.  In the event any Guarantor (a “Paying
Guarantor”) shall make any payment or payments under this Guaranty or shall
suffer any loss as a result of any realization upon any collateral granted by
it to secure its obligations under this Guaranty, each other Guarantor (each a
“Non-Paying


 


96

















 


Guarantor”) shall
contribute to such Paying Guarantor an amount equal to such Non-Paying
Guarantor’s “Pro Rata Share” of such payment or payments made, or losses
suffered, by such Paying Guarantor.  For
purposes of this Article XV, each Non-Paying Guarantor’s “Pro Rata
Share” with respect to any such payment or loss by a Paying Guarantor shall be
determined as of the date on which such payment or loss was made by reference
to the ratio of (i) such Non-Paying Guarantor’s Maximum Liability as of such
date (without giving effect to any right to receive, or obligation to make, any
contribution hereunder) or, if such Non-Paying Guarantor’s Maximum Liability
has not been determined, the aggregate amount of all monies received by such
Non-Paying Guarantor from the Borrower after the date hereof (whether by loan,
capital infusion or by other means) to (ii) the aggregate Maximum Liability of
all Guarantors hereunder (including such Paying Guarantor) as of such date
(without giving effect to any right to receive, or obligation to make, any
contribution hereunder), or to the extent that a Maximum Liability has not been
determined for any Guarantor, the aggregate amount of all monies received by
such Guarantors from the Borrower after the date hereof (whether by loan,
capital infusion or by other means). 
Nothing in this provision shall affect any Guarantor’s several liability
for the entire amount of the Guaranteed Obligations (up to such Guarantor’s
Maximum Liability).  Each of the
Guarantors covenants and agrees that its right to receive any contribution
under this Guaranty from a Non-Paying Guarantor shall be subordinate and junior
in right of payment to the payment in full in cash of the Guaranteed
Obligations.  This provision is for the
benefit of the Secured Parties and the Guarantors and may be enforced by any
one, or more, or all of them in accordance with the terms hereof.


 


15.12                     Lending Installations.  The Guaranteed Obligations may be booked at any Lending
Installation.  All terms of this
Guaranty apply to and may be enforced by or on behalf of any Lending
Installation.


 


15.13                     Liability Cumulative.  The liability of each Loan Party as a Guarantor under this Article
XV is in addition to and shall be cumulative with all liabilities of each
Loan Party to the Secured Parties under this Agreement and the other Loan
Documents to which such Loan Party is a party or in respect of any obligations
of liabilities of the other Loan Parties, without any limitation as to amount,
unless the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.


 


ARTICLE XVI


 


CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL; CONFLICT
WITH ORDERS


 


16.1                           CHOICE OF
LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW
PROVISION) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS AND (TO THE EXTENT APPLICABLE) THE BANKRUPTCY CODE.


 


16.2                           WAIVER OF
JURY TRIAL. 
EACH LOAN PARTY, THE AGENT, THE LC ISSUER AND EACH LENDER HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.


 


97

















 


16.3                           CONSENT TO JURISDICTION.  EACH GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR
NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH GUARANTOR HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM.  NOTHING HEREIN SHALL LIMIT THE
RIGHT OF THE AGENT, THE LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST
ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.  ANY JUDICIAL PROCEEDING BY ANY GUARANTOR
AGAINST THE AGENT, THE LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR IN CONNECTION
WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.


 


16.4                           CONFLICT
WITH ORDERS.  In the event of any conflict between the
Loan Documents and the Orders, the term of the Orders shall control (unless
otherwise provided therein).


 


98

















 


IN WITNESS WHEREOF, the Loan
Parties, the Lenders, the LC Issuer and the Agent have executed this Agreement
as of the date first above written.


 


	
   

  	
  BORROWER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHWESTERN
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTORS:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHWESTERN
  SERVICES CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHWESTERN
  GROWTH CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NORCOM
  ADVANCED TECHNOLOGIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHWESTERN
  CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


99

















 


	
   

  	
  NORTHWESTERN
  ENERGY DEVELOPMENT, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NEKOTA
  RESOURCES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHWESTERN
  GENERATION I, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MONTANA
  MEGAWATTS I, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NORTHWESTERN
  ENERGY MARKETING, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


100

















 


	
   

  	
  NOTICE ADDRESS FOR ALL LOAN
  PARTIES:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  c/o
  NorthWestern Corporation

  	
   

  
	
   

  	
  Address:

  	
  125
  S. Dakota Avenue

  
	
   

  	
   

  	
  Sioux
  Falls, South Dakota  57104

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:  Chief Restructuring Officer

  
	
   

  	
  Facsimile:  (605) 978-2845

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  with
  copies to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Eric
  Jacobsen, Esq.

  	
   

  
	
   

  	
  NorthWestern
  Corporation

  	
   

  
	
   

  	
  125
  S. Dakota Avenue

  	
   

  
	
   

  	
  Sioux
  Falls, South Dakota  57104

  	
   

  
	
   

  	
  Facsimile:  (605) 978-2963

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  and

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Jesse
  H. Austin, III, Esq.

  	
   

  
	
   

  	
  Paul,
  Hastings, Janofsky & Walker LLP

  
	
   

  	
  600
  Peachtree Street, N.E., Suite 2400

  
	
   

  	
  Atlanta,
  Georgia  30308

  	
   

  
	
   

  	
  Facsimile:  (404) 815-2424

  	
   

  
				



 


101



















 


	
   

  	
  AGENT, LC ISSUER AND LENDER:

  
	
   

  	
   

  
	
   

  	
  BANK ONE, NA

  
	
   

  	
  Individually,
  as Agent, Lender and LC Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Joseph R.
  Lehrer

  
	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  120 South
  LaSalle Street, 20th Floor

  
	
   

  	
   

  	
  Chicago,
  Illinois  60603

  
	
   

  	
  Attention:

  	
  Andrew D.
  Hall

  
	
   

  	
  Facsimile:

  	
  (312)
  661-6929

  
	
   

  	
   

  
	
   

  	
  with copies
  to:

  
	
   

  	
   

  
	
   

  	
  Skadden,
  Arps, Slate,

  
	
   

  	
  Meagher & Flom (Illinois)

  
	
   

  	
  333 West
  Wacker Drive

  
	
   

  	
  Chicago,
  Illinois  60606

  
	
   

  	
  Attention:

  	
  Timothy R.
  Pohl, Esq.

  
	
   

  	
   

  	
  Seth E.
  Jacobson, Esq.

  
	
   

  	
  Facsimile:

  	
  (312)
  407-0411

  
								



 


102

















 


COMMITMENT SCHEDULE


 


	
  Lender

  	
   

  	
  Revolving

  Commitment

  	
   

  	
  Term

  Loan

  Commitment

  	
   

  	
  Aggregate

  Commitment

  	
   

  
	
  Bank One, NA

  	
   

  	
  $

  	
  100,000,000.00

  	
   

  	
  $

  	
  390,000,000.00

  	
   

  	
  $

  	
  490,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  100,000,000.00

  	
   

  	
  $

  	
  390,000,000.00

  	
   

  	
  $

  	
  490,000,000.00

  	
   

  



 


 


Note:  Pursuant to the terms of the Agreement, until the Term Loan
Commitment Effective Date, the Term Loan Commitment shall be $0.


 

















 


EXHIBIT A

FORM OF EURODOLLAR BORROWING NOTICE


 


Date:
                                            ,
20    


To:                              Bank
One, NA, as Agent for the Lenders


 


This Borrowing Notice is
furnished pursuant to Section 2.1.1(b) of that certain Secured Superpriority
Debtor in Possession Credit and Guaranty Agreement dated as of September 19,
2003 (as amended, modified, renewed or extended from time to time, the “Agreement”)
among NorthWestern Corporation, a Delaware corporation and debtor and debtor in
possession (the “Borrower”), the other Loan Parties, the lenders party
thereto and Bank One, NA, as Agent for the Lenders and as LC Issuer.  Unless otherwise defined herein, capitalized
terms used in this Borrowing Notice have the meanings ascribed thereto in the
Agreement.


The Borrower hereby notifies the Agent of its request of the following
Eurodollar Advance:


 


(a)                                  Borrowing
Date of Eurodollar Advance (must be a Business Day):
                                                            


 


(b)                                 Aggregate
Amount of the Eurodollar Advance:
$                                                                


 


(c)                                  Duration
of Interest Period:


 


(i)                                     One
Month
                    


 


(ii)                                  Two
Months
                    


 


(iii)                               Three
Months
                    


 


(iv)                              Six
Months
                    


 


The Borrower hereby represents
that, as of the date of this Borrowing Notice:


 


(a)                                  There
exists no Default or Unmatured Default and no Default or Unmatured Default
shall result from this Credit Extension.


 


(b)                                 The
representations and warranties contained in Article V of the Agreement are true
and correct, except to the extent any such representation or warranty is stated
to relate solely to an earlier date.


 


	
   

  	
  NORTHWESTERN
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


EXHIBIT B


FORM OF CONVERSION/CONTINUATION NOTICE


 


 


Date:
                                            ,
20    


 


To:                              Bank
One, NA, as Agent for the Lenders


 


This Conversion/Continuation
Notice is furnished pursuant to Section 2.7 of that certain Secured
Superpriority Debtor in Possession Credit and Guaranty Agreement dated as of
September 19, 2003 (as amended, modified, renewed or extended from time to
time, the “Agreement”) among NorthWestern Corporation, a Delaware
corporation and debtor and debtor in possession (the “Borrower”), the
other Loan Parties, the lenders party thereto and Bank One, NA, as Agent for
the Lenders and as LC Issuer.  Unless
otherwise defined herein, capitalized terms used in this Borrowing Notice have
the meanings ascribed thereto in the Agreement.


 


The Borrower hereby notifies
the Agent of its request to [SELECT ONE]:


 


(a)          convert
the Floating Rate Advance in the amount of
$                  
into a Eurodollar Advance with an Interest Period duration of:


 


                
month(s)


 


(b)         continue
the Eurodollar Advance described below:


 


(i)             Date
of Continuation (must be a Business Day):
                                  


 


(ii)          Aggregate
Amount of Advance:
$                                                      


 


(iii)       The
duration of the Interest Period applicable thereto:


 


                
month(s)


 


The Borrower hereby represents
that, as of the date of this Conversion/Continuation Notice:


 


(a)                                  There
exists no Default or Unmatured Default and no Default or Unmatured Default
shall result from this Credit Extension.


 


(b)                                 The
representations and warranties contained in Article V of the Agreement are true
and correct, except to the extent any such representation or warranty is stated
to relate solely to an earlier date.


 


	
   

  	
  NORTHWESTERN
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


EXHIBIT C-1

FORM OF REVOLVING NOTE


 


 


[Date]


 


NORTHWESTERN CORPORATION, a
Delaware corporation and debtor and debtor in possession under chapter 11 of
the Bankruptcy Code (the “Borrower”), promises to pay to
                                                                        
or its registered assigns (the “Lender”) the aggregate unpaid principal
amount of all Revolving Loans made by the Lender to the Borrower pursuant to
Article II of the Agreement (as hereinafter defined), in immediately available
funds at the main office of Bank One, NA, as Agent, together with interest on
the unpaid principal amount hereof at the rates and on the dates set forth in
the Agreement.  The Borrower shall pay
the principal of and accrued and unpaid interest on the Revolving Loans and
Reimbursement Obligations in full on the Facility Termination Date.


 


The Lender shall, and is hereby
authorized to, record on the schedule attached hereto, or to otherwise record
in accordance with its usual practice, the date and amount of each Loan and the
date and amount of each principal payment hereunder.


 


This Note is one of the Notes
issued pursuant to, and is entitled to the benefits of, the Secured
Superpriority Debtor in Possession Credit and Guaranty Agreement dated as of
September 19, 2003 (which, as it may be amended or modified and in effect from
time to time, is herein called the “Agreement”), among the Borrower, the
other Loan Parties, the lenders party thereto, including the Lender, the LC
Issuer and Bank One, NA, as Agent, to which Agreement reference is hereby made
for a statement of the terms and conditions governing this Note, including the
terms and conditions under which this Note may be prepaid or its maturity date
accelerated.  This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
as more specifically described in the Agreement, and reference is made thereto
for a statement of the terms and provisions thereof.  Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.


 


 


	
   

  	
  NORTHWESTERN
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL


TO


NOTE OF NORTHWESTERN CORPORATION,


DATED           ,


 


 


	
  Date

  	
   

  	
  Principal

  Amount

  Of Loan

  	
   

  	
  Period

  	
   

  	
  Maturity

  of

  Interest

  Paid

  	
   

  	
  Principal

  Amount

  Balance

  	
   

  	
  Unpaid

  	
   

  



 

















 


EXHIBIT C-2

FORM OF TERM NOTE


 


 


[Date]


 


NORTHWESTERN CORPORATION, a
Delaware corporation and debtor and debtor in possession under chapter 11 of
the Bankruptcy Code (the “Borrower”), promises to pay to
                                                                        
or its registered assigns (the “Lender”) the aggregate unpaid principal
amount of all Term Loans made by the Lender to the Borrower pursuant to Article
II of the Agreement (as hereinafter defined), in immediately available funds at
the main office of Bank One, NA, as Agent, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement.  The Borrower shall pay the
principal of and accrued and unpaid interest on the Term Loans in full on the
Facility Termination Date and shall make such mandatory prepayments as are
required to be made under the terms of Article II of the Agreement.


 


The Lender shall, and is hereby
authorized to, record on the schedule attached hereto, or to otherwise record
in accordance with its usual practice, the date and amount of each Loan and the
date and amount of each principal payment hereunder.


 


This Note is one of the Notes
issued pursuant to, and is entitled to the benefits of, the Senior Secured
Superpriority Debtor in Possession Credit and Guaranty Agreement dated as of
September 19, 2003 (which, as it may be amended or modified and in effect from
time to time, is herein called the “Agreement”), among the Borrower, the
other Loan Parties, the lenders party thereto, including the Lender, the LC
Issuer and Bank One, NA, as Agent, to which Agreement reference is hereby made
for a statement of the terms and conditions governing this Note, including the
terms and conditions under which this Note may be prepaid or its maturity date
accelerated.  This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty,
as more specifically described in the Agreement, and reference is made thereto
for a statement of the terms and provisions thereof.  Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.


 


 


	
   

  	
  NORTHWESTERN
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL


TO


NOTE OF NORTHWESTERN CORPORATION,


DATED             ,


 


 


	
  Date

  	
   

  	
  Principal 

  Amount

  of

  Loan

  	
   

  	
  Maturity

  Of Interest

  Period

  	
   

  	
  Principal 

  Amount

  Paid

  	
   

  	
  Unpaid

  Balance

  	
   

  



 

















 


EXHIBIT D

FORM OF COMPLIANCE CERTIFICATE


 


 


To:                              The
Lenders parties to the


Credit
Agreement Described Below


 


This Compliance Certificate is
furnished pursuant to that certain Secured Superpriority Debtor in Possession
Credit and Guaranty Agreement dated as of September 19, 2003 (as amended, modified,
renewed or extended from time to time, the “Agreement”) among
NorthWestern Corporation as debtor and debtor in possession (the “Borrower”),
the other Loan Parties, the Lenders party thereto and Bank One, NA, as Agent
for the Lenders and as an LC Issuer. 
Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.


 


THE UNDERSIGNED HEREBY
CERTIFIES THAT:


 


1.                                       I
am the duly elected
                                              
of the Borrower;


 


2.                                     I
have reviewed the terms of the Agreement and I have made, or have caused to be
made under my supervision, a detailed review of the transactions and conditions
of the Borrower and its Subsidiaries during the accounting period covered by
the attached financial statements;


 


3.                                       The
examinations described in paragraph 2 did not disclose, and I have no knowledge
of, the existence of any condition or event which constitutes a Default or
Unmatured Default during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Certificate, except as
set forth below;


 


4.                                       I
hereby certify that no Loan Party has changed (i) its name, (ii) its chief
executive office, (iii) principal place of business, (iv) the type of entity it
is or (v) its state of incorporation or organization without having given the
Agent the notice required by Section 6.23 of the Agreement;


 


5.                                       Schedule
I attached hereto sets forth financial data and computations evidencing the Borrower’s
compliance with certain covenants of the Agreement, all of which data and
computations are true, complete and correct; 
and


 


6.                                       Schedule
II attached hereto sets forth the various reports and deliveries which are
required at this time under the Agreement and the other Loan Documents and the
status of compliance.


 


Described below are the
exceptions, if any, to paragraph 3 by listing, in detail, the nature of the
condition or event, the period during which it has existed and the action which
the Borrower has taken, is taking, or proposes to take with respect to each
such condition or event:


 


 


 


 

















 


The foregoing certifications,
together with the computations set forth in Schedule I hereto and the financial
statements delivered with this Certificate in support hereof, are made and
delivered this            day
of
                              ,
      .


 


 


	
   

  	
  NORTHWESTERN
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


SCHEDULE I TO COMPLIANCE CERTIFICATE


 


Compliance as of
                  ,
         with


Provisions of        and
        of


the Agreement


 

















 


SCHEDULE II TO COMPLIANCE CERTIFICATE


 


Reports and Deliveries Currently Due


 

















 


EXHIBIT E


 


FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT


 


This
Assignment and Assumption (the “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between *[Insert name
of Assignor]* (the “Assignor”) and *[Insert name
of Assignee]* (the “Assignee”).  Capitalized terms used but not defined
herein shall have the meanings given to them in the Secured Superpriority
Debtor in Possession Credit and Guaranty Agreement identified below (as
amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee.  The Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.


 


For an agreed
consideration, the Assignor hereby irrevocably sells and assigns to the Assignee,
and the Assignee hereby irrevocably purchases and assumes from the Assignor,
subject to and in accordance with the Standard Terms and Conditions and the
Credit Agreement, as of the Effective Date inserted by the Agent as
contemplated below, the interest in and to all of the Assignor’s rights and
obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto that represents the
amount and percentage interest identified below of all of the Assignor’s
outstanding rights and obligations under the respective facilities identified
below (including without limitation any letters of credit, guaranties and
swingline loans included in such facilities and, to the extent permitted to be
assigned under applicable law, all claims (including without limitation
contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity), suits, causes of action and any other right
of the Assignor against any Person whether known or unknown arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby) (the “Assigned
Interest”).  Such sale and
assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.


 


1.                                       Assignor:                                                                                                                                  


 


2.                                       Assignee:                                                                                                                                 *[and
is an Affiliate/Approved Fund of identify Lender](1)*


 


3.                                       Borrower(s):                              NorthWestern
Corporation, a Delaware corporation and a debtor and debtor in possession


 


4.                                       Agent:                                                           Bank
One, NA, as the agent under the Credit Agreement


 


5.                                       Credit
Agreement:                                               The
Secured Superpriority Credit and Guaranty Agreement dated as of September 19,
2003 among NorthWestern Corporation, the other Loan Parties party thereto, the
Lenders party thereto and Bank One, NA, as Agent


 












(1) Select as applicable.


 

















 


6.                                       Assigned
Interest:


 


	
  Facility Assigned

  	
   

  	
  Aggregate
  Amount of

  Commitment/ Credit

  Exposure for all

  Lenders(1)

  	
   

  	
  Amount of

  Commitment/ Credit

  Exposure Assigned(2)

  	
   

  	
  Percentage
  Assigned of

  Commitment/ Credit

  Exposure(3)

  	
   

  
	
  Revolving Commitment

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  Term Loan Commitment

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  



 


7.                                       Trade
Date:                                                                                                                         (4)


 


Effective Date:
                                        ,
20     [TO BE INSERTED BY AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER BY THE AGENT.]


 


The terms set forth in this Assignment and
Assumption are hereby agreed to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  



 


	
  Consented to
  and  Accepted:

  
	
   

  
	
  BANK ONE,
  NA, as Agent and LC Issuer

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  



 


 












(1) Amount to be adjusted by the
counterparties to take into account any payments or prepayments made between
the Trade Date and the Effective Date.


(2) Amount to be adjusted by the
counterparties to take into account any payments or prepayments made between
the Trade Date and the Effective Date.


(3) Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.


(4) Insert if satisfaction of minimum amounts
is to be determined as of the Trade Date.


 

















 


ANNEX 1


TERMS AND CONDITIONS
FOR


ASSIGNMENT AND
ASSUMPTION


 


1.  Representations and Warranties.


 


1.1   Assignor.  The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free
and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby.  Neither the Assignor nor any of
its officers, directors, employees, agents or attorneys shall be responsible
for (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency, perfection,
priority, collectibility, or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document, (iv) the performance or observance by the Borrower, any of its Subsidiaries
or Affiliates or any other Person of any of their respective obligations under
any Loan Document, (v) inspecting any of the property, books or records of the
Borrower, or any guarantor, or (vi) any mistake, error of judgment, or action
taken or omitted to be taken in connection with the Loans or the Loan
Documents.


 


1.2.  Assignee.  The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) from and after
the Effective Date, it shall be bound by the provisions of the Credit Agreement
as a Lender thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iii) agrees that its payment
instructions and notice instructions are as set forth in Schedule 1 to this
Assignment and Assumption, (iv) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are “plan assets” as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be “plan assets” under
ERISA, (v) agrees to indemnify and hold the Assignor harmless against all
losses, costs and expenses (including, without limitation, reasonable
attorneys’ fees) and liabilities incurred by the Assignor in connection with or
arising in any manner from the Assignee’s non-performance of the obligations
assumed under this Assignment and Assumption, (vi) it has received a copy of
the Credit Agreement, together with copies of financial statements and such
other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Agent or any other
Lender, and (vii) attached as Schedule 1 to this Assignment and Assumption is
any documentation required to be delivered by the Assignee with respect to its
tax status pursuant to the terms of the Credit Agreement, duly completed and
executed by the Assignee and (b) agrees that (i) it will, independently and
without reliance on the Agent, the Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, and (ii) it will perform in accordance with their terms all
of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.


 


2.   Payments.    The Assignee shall pay the Assignor, on the Effective Date, the
amount agreed to by the Assignor and the Assignee.  From and after the Effective Date, the Agent shall make all
payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have
accrued to but excluding the Effective Date and to the Assignee for amounts
which have accrued from and after the Effective Date.


 

















 


3.  General Provisions. This Assignment
and Assumption shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number of
counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and
Assumption.  This Assignment and
Assumption shall be governed by, and construed in accordance with, the law of
the State of New York.


 

















 


ADMINISTRATIVE
QUESTIONNAIRE


 


(Schedule to be supplied by Closing Unit or Trading Documentation Unit)


 


(For Forms call
                
at
                )


 

















 


US AND NON-US TAX
INFORMATION REPORTING REQUIREMENTS


 


(Schedule to be supplied by Closing Unit or Trading Documentation Unit)


 


(For Forms call
                
at
                 )


 

















 


EXHIBIT F


 


FORM OF BORROWING BASE CERTIFICATE


(to be used prior to the occurrence of the Term Loan Commitment
Effective Date)


 


	
  BORROWING BASE REPORT

  
	
   

  	
  Rpt #

  
	
  Obligor
  Number:

  	
  Date:

  
	
  Loan Number:

  	
  Period
  Covered:

  



 


	
  COLLATERAL CATEGORY

  	
   

  	
  Billed
  Accounts

  	
   

  	
  Unbilled
  Accounts

  	
   

  	
  Stored Gas

  Inventory

  	
   

  	
  Working
  Gas and

  Fuel

  	
   

  	
  Materials
  and 

  Supplies

  	
   

  	
  Turbine
  Collateral

  	
   

  	
  Total

  	
   

  
	
  Description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1 Beginning Balance (Previous report - Line 8)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2 Additions to Collateral (Gross Sales or Purchases)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3 Other Additions (Add back any non-A/R cash in line 3)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4 Deductions to Collateral (Cash Received)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5 Deductions to Collateral (Discounts)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6 Deductions to Collateral (Credit Memos)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7 Other non-cash credits to A/R

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8 Total Ending Collateral Balance

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9 Less Ineligible Billed Accounts (Itemized on attached Schedule 1)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10 Less Ineligible Unbilled Accounts (Itemized on attached Schedule
  2)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11 Less Ineligible Stored Gas Inventory (Itemized on attached
  Schedule 3)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12 Less Ineligible Working Gas and Fuel (Itemized on attached
  Schedule 4)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13 Less Ineligible Materials and Supplies (Itemized on attached
  Schedule 5)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14 Less Ineligible Turbine Collateral (Itemized on attached Schedule
  6)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15 Total Ineligibles

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  16 Total Eligible Collateral

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  17 Advance Rate Percentage

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18 Borrowing Base Value

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  19 Reserves (Letters of Credit, Other)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  20 Total Borrowing Base Value

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21 CAPS/Loan Limits

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  22 Maximum Borrowing Limit (Lesser
  of 20 and 21)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
  LOAN STATUS

  	
   

  
	
  23 Previous Loan Balance (Previous Report Line 26)

  	
  0

  
	
  24 Less: 

  	
  A.  Net Collections (Same as
  line 4)

  	
  0

  
	
   

  	
  B.  Adjustments/Other 

  	
   

  
	
  25 Add:

  	
  A.  Request for Funds

  	
  0

  
	
   

  	
  B.  Adjustments/Other
                                

  	
   

  
	
  26 New Loan Balance

  	
  0

  
	
  27 Availability Not Borrowed (Lines 22 less 26)

  	
  0

  
	
  28 Term Loan

  	
  0

  
	
  29 OVERALL EXPOSURE (lines 27 & 28)

  	
  0

  



 


	
  Pursuant to,
  and in accordance with, the terms and provisions of that certain Secured
  Superpriority Debtor in Possession Credit and Guaranty Agreement (the “Credit
  Agreement”), among NorthWestern Corporation, a Delaware corporation, as
  debtor and debtor in possession under chapter 11 of the Bankruptcy Code
  (“Borrower”), the other Loan Parties party thereto as Guarantors, the Lenders
  and Bank One, NA, as LC Issuer and as Agent, Borrower is executing and
  delivering to Agent this Borrowing Base Report accompanied by supporting data
  (collectively referred to as the “Report”). 
  Borrower represents and warrants to Agent that this Report is true and
  correct, and is based on information contained in Borrower’s own financial
  accounting records.  Borrower, by the
  execution of this Report, hereby ratifies, confirms and affirms all of the
  terms, conditions and provisions of the Credit Agreement, and further
  certifies on this        day of
                      ,
  20     , that the Borrower is in compliance with
  said Credit Agreement.

   

  
	
  BORROWER
  NAME:

  Northwestern
  Corporation

  	
  AUTHORIZED
  SIGNATURE:

  



 

















 


SCHEDULE 1 TO BORROWING BASE REPORT


 


INELIGIBLE BILLED ACCOUNTS


 


	
  Past Due A/R *

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Governmental A/R

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Accounts in Bankruptcy A/R

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Accounts Evidenced by
  Promissory Notes

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Cross Aged **

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
   

  	
   

  



 












* Greater than 90 days from
invoice date


 


** If greater than 90 day balance
for anyone customer exceeds 25% of the total customers outstanding bill, then
the total customer balance is excluded


 

















 


SCHEDULE
2 TO BORROWING BASE REPORT


 


INELIGIBLE
UNBILLED ACCOUNTS


 


	
  Unbilled over 30 days

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
   

  	
   

  



 

















 


SCHEDULE
3 TO BORROWING BASE REPORT


 


INELIGIBLE
STORED GAS INVENTORY


 

















 


SCHEDULE
4 TO BORROWING BASE REPORT


 


INELIGIBLE
WORKING GAS AND FUEL


 

















 


SCHEDULE 5 TO BORROWING BASE REPORT


 


INELIGIBLE MATERIALS AND SUPPLIES


 

















 


SCHEDULE 6 TO BORROWING BASE REPORT


 


INELIGIBLE TURBINE COLLATERAL


 

















 


SCHEDULE 1(a)


 


Permitted Liens


 


Schedule to be delivered within five Business Days and subject to
Agent’s satisfaction, in its sole discretion.


 

















 


Schedule 1(b)


 


Permitted
Pre-Petition Payments


 


1.             Secured
Debt:


 


Regularly
scheduled payments when due in respect of the secured debt of the Borrower
identified in the table below:


 


A. Montana
Mortgage Bonds


The Borrower owns utility assets in the State of Montana which are
subject to a (First) Mortgage and Deed of Trust originally executed by Montana
Power in 1945 and supplemented from time to time to reflect the various bond
issuances made pursuant thereto. The following series remain outstanding listed
in order of maturity: 


 


	
  Description

  	
   

  	
  Amount
  Outstanding

  	
   

  
	
  7% Series Due 2005

  	
   

  	
  $

  	
  5.4 million

  	
   

  
	
  7.30% Series Due 2006

  	
   

  	
  $

  	
  150 million

  	
   

  
	
  Credit Agreement (2002) Series Due 2006
  (Security for CSFB Facility)

  	
   

  	
  $

  	
  280 million

  	
   

  
	
  8.25% Series Due 2007

  	
   

  	
  $

  	
  0.4 million

  	
   

  
	
  7.25% Secured Medium Term Notes Due 2008

  	
   

  	
  $

  	
  13 million

  	
   

  
	
  8.95% Series Due 2022

  	
   

  	
  $

  	
  1.5 million

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  450.3
  million

  	
   

  



 


B. South
Dakota Mortgage Bonds


The Borrower owns utility assets in the State of South Dakota which are
subject to a General Mortgage Indenture and Deed of Trust originally executed
by the Borrower in 1993 and supplemented from time to time to reflect the
various bond issuances made pursuant thereto. The following series remain
outstanding listed in order of maturity:


 


	
  Description

  	
   

  	
  Amount
  Outstanding

  	
   

  
	
  7.10% Series Due 2005

  	
   

  	
  $

  	
  60 million

  	
   

  
	
  Credit Agreement (2002) Series Due 2006
  (Security for CFSB Facility)

  	
   

  	
  $

  	
  110 million

  	
   

  
	
  7.00% Series Due 2023

  	
   

  	
  $

  	
  55 million

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  225
  million

  	
   

  



 


C. CSFB Facility


On December 17, 2002, the Borrower entered into a $390 million secured
term loan credit facility with a syndicate of banks led by Credit Suisse First
Boston. $280 million of this facility is secured by mortgage bonds issued under
the Montana Mortgage Indenture described above and $110 million is secured by
mortgage bonds under the South Dakota Mortgage Indenture described above.


 


D. Pollution
Control Revenue Bonds


The Borrower assumed certain obligations of Montana Power regarding
pollution control revenue bonds. The pollution control bonds are issued by
various county and municipalities, although they are secured by isolated
electric generating facilities owned by the Borrower, subject to the rights of
the outstanding bondholders under the Montana Mortgage Indenture and the South
Dakota Mortgage Indenture. The following pollution control bonds remain outstanding:


 


	
  Description

  	
   

  	
  Amount
  Outstanding

  	
   

  
	
  Grant County, South Dakota Series 1993A
  Revenue Bonds Due 2023

  	
   

  	
  $

  	
  6.4 million

  	
   

  
	
  Grant County, South Dakota Series 1993B
  Revenue Bonds Due 2023

  	
   

  	
  $

  	
  3.4 million

  	
   

  



 


1

















 


	
  City of Salix, Iowa Series 1993 Revenue
  Bonds Due 2023,

  	
   

  	
  $

  	
  4.0 million

  	
   

  
	
  Mercer County, Nebraska Series 1993 Revenue
  Bonds Due 2023

  	
   

  	
  $

  	
  7.55 million

  	
   

  
	
  City of Forsyth, Montana Series 1993A
  Revenue Bonds Due 2023

  	
   

  	
  $

  	
  90.2 million

  	
   

  
	
  City of Forsyth, Montana Series 1993B
  Revenue Bonds Due 2023

  	
   

  	
  $

  	
  80 million

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  191.55 million

  	
   

  



 


E. Gas Transition Bonds


The Borrower assumed certain obligations of Montana Power, as grantor
and servicer of the MPC Natural Gas Funding Trust, issuer of the $48.3 million
of the 6.2% Transition Bonds Due 2012 which are secured by a pledge of certain
utility related revenues (the Gas Transition Bonds utilized a trust structure
in connection with a conveyance of certain revenue rights, but if not deemed a
true sale would be treated as a secured transaction).


 


	
  TOTAL SECURED:

  	
   

  	
  $915.15 million

  



 


2.             Pre-Petition Real
Property Taxes:


 


The amounts
set forth in Schedule 5.7 below with respect to pre-petition real property
taxes owing to various counties in the State of Montana.


 


3.             Payments Approved by
Bankruptcy Court:


 


Payments
approved by the Bankruptcy Court in the following orders, except as otherwise
limited by this Credit Agreement (e.g. §§ 5.10 and 6.27): (a) Order Authorizing
Payment of Certain Pre-Petition Payroll and Related Employee Obligations, dated
September 15, 2003; (b) Order Authorizing Debtor to Continue Insurance and
Insurance Financing Program and Granting Related Relief, dated September 15,
2003; (c) Interim Order Authorizing the Debtor to (i) Comply with Terms of
Pre-Petition Trading Contracts, (ii) Enter into Post-Petition Trading Contracts
in the Ordinary Course of Business, and (iii) Setting a Final Hearing to
Consider the Entry of a Final Order Affirming Interim Order and Authorizing
Assumption of Pre-Petition Trading Contracts, dated September 15, 2003; (d)
Interim Order Authorizing the Debtors to Obtain Post-Petition Credit Card
Financing and Scheduling a Final Hearing, dated September 15, 2003; and (e)
Order Authorizing Debtor to Continue and Maintain Its (A) Consolidated Cash
Management System; (B) Existing Bank Accounts; (C) Existing Business Forms; (D)
Public Purpose Programs; and (E) to Pay on an Interim Basis Certain Limited
Intercompany Obligations; and Granting Related Relief and Scheduling a Final
Hearing, dated September 15, 2003.


 


2

















 


Schedule 5.7


 


Taxes


 


The Borrower is delinquent in
the payment of real property taxes owing to the following counties in Montana
in the amounts set forth below:


 


	
  County:

  	
   

  	
  Amount
  Due:

  	
   

  
	
  Carbon

  	
   

  	
  $

  	
  443,446.71

  	
   

  
	
  Choteau

  	
   

  	
  $

  	
  242,755.53

  	
   

  
	
  Fergus

  	
   

  	
  $

  	
  291,898.51

  	
   

  
	
  Gallatin

  	
   

  	
  $

  	
  1,742,352.51

  	
   

  
	
  Hill

  	
   

  	
  $

  	
  439,960.93

  	
   

  
	
  Madison

  	
   

  	
  $

  	
  488,386.28

  	
   

  
	
  Park

  	
   

  	
  $

  	
  741,395.35

  	
   

  
	
  Pondera

  	
   

  	
  $

  	
  231,732.73

  	
   

  
	
  Toole

  	
   

  	
  $

  	
  354,093.32

  	
   

  



 


The amounts listed assume
payment is made on September 30 and include interest and penalties through that
date. If the payments are made prior to September 30, the amounts due would be
slightly less than what is listed. If payments are made after September 30, the
amounts due would be slightly more due to additional interest and penalties.


 


1

















 


Schedule 5.9


 


Capitalization and Subsidiaries


 


A.  Organizational
Chart


 





1

















 


B.  Chief
Executive Office


 


125 S. Dakota
Ave.; Sioux Falls, SD 57104


NorthWestern
Corporation


NorthWestern
Growth Corporation


NorthWestern
Capital Corporation


NorthWestern
Energy Development, LLC


NorthWestern
Energy Marketing, LLC


NorthWestern
Generation I, LLC


Montana
Megawatts I, LLC


 


600 Market
Street West, Huron, SD 57350


NorCom
Advanced Technologies, Inc.


NorthWestern
Services Corporation


Nekota
Resources, Inc.


 


2

















 


C.  Capital Stock


 


	
  Company

  	
   

  	
  Class of
  Stock

  	
   

  	
  Total

  Authorized

  	
   

  	
  Total Issued and

  Outstanding

  	
   

  
	
  NorthWestern Corporation

  	
   

  	
  Common

  	
   

  	
  50,000,000

  	
   

  	
  37,680,095

  	
   

  
	
   

  	
   

  	
  Cum.
  Preferred Stock

  	
   

  	
  1,000,000

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
  Preference
  Stock

  	
   

  	
  1,000,000

  	
   

  	
  0

  	
   

  
	
  NorthWestern Capital Corporation

  	
   

  	
  NW Capital
  Group Stock

  	
   

  	
  1,000,000

  	
   

  	
  425,000

  	
   

  
	
   

  	
   

  	
  Blue Dot
  Group Stock

  	
   

  	
  500,000

  	
   

  	
  212,500

  	
   

  
	
   

  	
   

  	
  Expanets
  Group Stock

  	
   

  	
  500,000

  	
   

  	
  212,500

  	
   

  
	
   

  	
   

  	
  New
  Strategies Group Stock

  	
   

  	
  2,000,000

  	
   

  	
  18,500

  	
   

  
	
  NorCom Advanced Technologies, Inc.

  	
   

  	
  Common

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  
	
  NorthWestern Growth Corporation

  	
   

  	
  Common

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  
	
  NorthWestern Services Corporation

  	
   

  	
  Common

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  
	
  Nekota Resources, Inc.

  	
   

  	
  Common

  	
   

  	
  1,000

  	
   

  	
  1,000

  	
   

  
	
  NorthWestern Energy Development, LLC

  	
   

  	
  Membership
  Interests

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  
	
  NorthWestern Energy Marketing, LLC

  	
   

  	
  Membership
  Interests

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  
	
  NorthWestern Generation I, LLC

  	
   

  	
  Membership
  Interests

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  
	
  Montana Megawatts I, LLC

  	
   

  	
  Membership
  Interests

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  



 


3

















 


D.  Type
of Entity


 


	
  [ILLEGIBLE]

  	
   

  	
  [ILLEGIBLE]

  	
   

  	
  [ILLEGIBLE]

  	
   

  	
  [ILLEGIBLE]

  	
   

  	
  [ILLEGIBLE]

  	
   

  
	
  NorthWestern Corporation

  	
   

  	
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  0161208

  	
   

  	
  46-0172280

  	
   

  
	
  NorthWestern Capital Corporation

  	
   

  	
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  3104805

  	
   

  	
  94-3354173

  	
   

  
	
  NorthWestern Energy Development, LLC

  	
   

  	
  Limited
  Liability Company

  	
   

  	
  Delaware

  	
   

  	
  3379713

  	
   

  	
  50-0007307

  	
   

  
	
  NorthWestern Energy Marketing, LLC

  	
   

  	
  Limited
  Liability Company

  	
   

  	
  Delaware

  	
   

  	
  3401220

  	
   

  	
  N/A

  	
   

  
	
  NorthWestern Generation I, LLC

  	
   

  	
  Limited
  Liability Company

  	
   

  	
  Delaware

  	
   

  	
  3379710

  	
   

  	
  52-2309787

  	
   

  
	
  Montana Megawatts I, LLC

  	
   

  	
  Limited
  Liability Company

  	
   

  	
  Delaware

  	
   

  	
  3372054

  	
   

  	
  N/A

  	
   

  
	
  NorthWestern Growth Corporation

  	
   

  	
  Corporation

  	
   

  	
  South Dakota

  	
   

  	
  DB034740

  	
   

  	
  46-0433431

  	
   

  
	
  NorthWestern Services Corporation

  	
   

  	
  Corporation

  	
   

  	
  South Dakota

  	
   

  	
  DB038612

  	
   

  	
  46-0445399

  	
   

  
	
  Nekota Resources, Inc.

  	
   

  	
  Corporation

  	
   

  	
  South Dakota

  	
   

  	
  DB037809

  	
   

  	
  91-1764039

  	
   

  
	
  NorCom Advanced Technologies, Inc.

  	
   

  	
  Corporation

  	
   

  	
  South Dakota

  	
   

  	
  DB039062

  	
   

  	
  46-0445871

  	
   

  



 


4

















 


Schedule 5.12


 


Fictitious
Names; Mergers; Acquisitions


 


NorthWestern
Corporation


Prior Name


•      NorthWestern
Public Service Company (changed 05/06/98)


Trade Name


•      NorthWestern
Energy (Montana, Wyoming)


Fictitious Names


•      NW
Corporation (Wyoming)


•      Northwestern
(Montana – cancelled 9/12/02)


Acquisition


•      Unit Purchase Agreement
dated as of September 29, 2000 among NorthWestern Corporation, Touch America
Holdings, Inc., and The Montana Power Company for the acquisition of electric
and natural gas transmission and distribution utility assets of The Montana
Power Company through the acquisition of membership units in The Montana Power,
L.L.C.


Consolidation


•      The assets of NorthWestern
Energy, L.L.C. (other than Milltown hydroelectric dam) were transferred to
NorthWestern Corporation in late 2002 and operate as the NorthWestern Energy
Division


•      NorthWestern Energy, L.L.C.
retained the Milltown hydroelectric dam and changed its name to The Clark Fork
and Blackfoot, L.L.C. in October 2002


 


NorthWestern
Energy Marketing, LLC


Prior Name


•      NorthWestern Power
Marketing, LLC (changed 10/24/01)


 


Montana
Megawatts I, LLC


Prior Name


•      Merchant
Energy Ventures, LLC (changed 09/14/01)


 


NorthWestern
Services Corporation


Consolidation


•      NorthWestern Energy
Corporation, Grant, Inc., and NorthWestern Services Group, Inc. merged into
NorthWestern Services Corporation (09/11/03)


 


NorthWestern
Capital Corporation


Consolidation


•      NorthWestern Capital
Ventures LLC merged into NorthWestern Services Corporation (09/10/03)


 


1

















 


Schedule 5.15


 


Exceptions
to Title


 


None


 


1

















 


Schedule 5.17


 


Environmental Matters


 


1.             During
informal conversations in the summer of 2003 on other matters, the Montana
Attorney General indicated that the State of Montana reserved any right that it
might have to file a natural resource damages claim based on the existence of
contaminated sediment located behind the Thompson Falls Dam, which area is
habitat for the Bull Trout, and that it was taking the matter under consideration.


 


2.             In light of the
United States Environmental Protection Agency’s proposal to require dam and
sediment removal in its final remedy for with the Milltown Reservoir, and in
consideration of other circumstances, the Borrower and Atlantic Richfield Company
(“ARCO”) have entered into a settlement that would assure ARCO access for
removal of sediments, and limit The Clark Fork and Blackfoot, L.L.C.’s (“CFB”)
and the Borrower’s liability for costs of dam removal, sediment removal,
natural resource damage claims, and upland disposal area remediation efforts to
no more than $10MM. CFB remains the licensee and operator of the dam,
responsible for compliance with the Federal Energy Regulatory Commission
(“FERC”) requirements.


 


1

















 


Schedule 5.19


 


Restrictions on
Incurrence of Indebtedness


 


1.             The
Borrower is subject to Section 204 of the Federal Power Act and the
implementing regulations of the Federal Energy Regulatory Commission (“FERC”)
which require approval of FERC prior to the issuance of securities by entities
subject to the regulation of FERC. However, approval is not required for
securities maturing not more than one (1) year after the date of issuance and
aggregating not more than five percent (5%) of the par value of the other
securities of the public utility then outstanding.


 


2.             The
Montana Public Service Commission (“MPSC”) takes the position that its approval
is required in connection with the issuance of debt by entities subject to the
regulation and oversight of the MPSC. The Borrower is subject to the regulation
and oversight of the MPSC in connection with its conduct of the utility
business formerly owned by The Clark Fork and Blackfoot, L.L.C. (f/k/a
NorthWestern Energy, L.L.C.) (“CFB”), including, without limitation, with
respect to the issuance of debt securities specifically relating to such
business. The debt subject to regulation by the MPSC, however, does not include
debt having a maturity less than one (1) year and constituting less than five
percent (5%) of the total par value of the securities of the issuer.


 


3.             The
Nebraska State Natural Gas Regulation Act (LB 790) was enacted on May 30, 2003
(the “Act”). Section 21.(1) of the Act states: “A jurisdictional utility shall
not subject property used in its intrastate natural gas utility business in
this state to encumbrance for the purpose of securing payment of any new
indebtedness or replacement indebtedness in an amount exceeding one hundred
million dollars attributable to this state unless first approved by the
commission. Approval or disapproval by the commission shall be by formal
written order, which shall be issued within forty-five day of the filing of the
application.”


 


1

















 


SCHEDULE 5.21


 


INDEBTEDNESS


 


Schedule to be delivered within five Business Days and subject to
Agent’s satisfaction, in its sole discretion.


 

















 


Schedule 5.22


 


Affiliate Transactions


 


See intercompany support obligations identified on Schedule 5.21


 


1

















 


Schedule 5.23


 


Intellectual Property


 


The inclusion of any item of
Intellectual Property on this schedule shall not serve as a representation that
such item of Intellectual Property is necessarily material to the business of
any grantor.


 


Trade
Names


 


	
  Owner

  	
   

  	
  Trade Name

  	
   

  	
  State

  	
   

  	
  Application
  Date

  	
   

  
	
  NorthWestern Corporation

  	
   

  	
  NorthWestern
  Energy

  	
   

  	
  Wyoming

  	
   

  	
  10/16/02

  	
   

  
	
  NorthWestern Corporation

  	
   

  	
  NorthWestern
  Energy

  	
   

  	
  Montana

  	
   

  	
  10/16/02
  (amendment to change owner from NorthWestern Energy, L.L.C. to NorthWestern
  Corporation

  	
   

  



 


1

















 


Trademarks


 


Trademark Applications and Registrations
Owned by Northwestern Corporation

This Group of Files are Maintained by Leonard, Street and Deinard

Updated on August 27, 2003


 


	
  Trademark
  Name

  	
   

  	
  Appl. No.

  	
   

  	
  Filing Date

  	
   

  	
  Reg. No.

  	
   

  	
  Reg. Date

  	
   

  	
  Class/Goods

  	
   

  	
  Status/Next Action Due

  	
   

  
	
  NORTHWESTERN PLUS



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/979,348

  	
   

  	
  12-Nov-1997

  	
   

  	
  2,374,004

  	
   

  	
  01-Aug-2000

  	
   

  	
  Class 35:
  Consultation services in the field of energy management;

  Class 37: Appliance, telephone, and security system installation maintenance
  and repair services;

  Class 42: Design for others of air quality management systems, lighting
  systems, heating, ventilating and air conditioning systems, and standby
  electrical generation systems; consultation services in the field of air
  quality, energy use, conservation, and energy use auditing, security system
  monitoring.

  	
   

  	
  Registered.

  File Affidavit of Use between 01-Aug-2005 and before 01-Aug-2006.

  	
   

  
	
  NORTHWESTERN PUBLIC SERVICE



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,319

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,449,042

  	
   

  	
  08-May-2001

  	
   

  	
  Class 39 -
  Public utility services in the nature of transmission of electricity and electricity
  distribution; public utility services in the nature of natural gas gathering
  and distribution, transmission of gas though pipelines for others.

  	
   

  	
  Registered.

  File Affidavit of Use between 08-May-2006 and before 08-May-2007.

  	
   

  



 


2

















 


Trademark
Applications and Registrations Owned by Northwestern Corporation


This Group of Files are Maintained by
Leonard, Street and Deinard


Updated on August 27, 2003


 


	
  Trademark Name

  	
   

  	
  Appl. No.

  	
   

  	
  Filing
  Date

  	
   

  	
  Reg. No.

  	
   

  	
  Reg. Date

  	
   

  	
  Class/Goods

  	
   

  	
  Status/Next
  Action Due

  	
   

  
	
  NorthWestern



  Mark is lined for

  colors red and blue.

   

  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,318

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,429,935

  	
   

  	
  20-Feb-2001

  	
   

  	
  Class 42 -
  Design for others of air quality management systems, lighting systems,
  heating, ventilating and air conditioning systems, and standby electrical
  generation systems; consultation services in the field of air quality, energy
  use, conservation, and energy use auditing, security system monitoring.

  	
   

  	
  Registered.

  File Affidavit of Use between 20-Feb-2006 and before 20-Feb-2007.

  	
   

  
	
  NorthWestern



  Mark is lined for colors red and blue.



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,317

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,431,531

  	
   

  	
  27-Feb-2001

  	
   

  	
  Class 37 -
  Appliance, telephone, and security system Installation maintenance and repair
  services.

  	
   

  	
  Registered.

  File Affidavit of Use between 27-Feb-2006 and before 27-Feb-2007.

  	
   

  
	
  NorthWestern



  Mark is lined for colors red and blue.



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,316

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,541,470

  	
   

  	
  19-Feb-2002

  	
   

  	
  Class 38 -
  Local and long distance telephone services and providing telecommunications
  connections to global computer network cable and satellite television
  transmission services.

  	
   

  	
  Registered.

  File Affidavit of Use between 19-Feb-2007 and before 19-Feb-2008.

  	
   

  



 


3

















 


Trade
Applications and Registrations Owned by Northwestern Corporation


This Group of File are Maintained by Leonard,
Street and Deinard


Updated on August 27, 2003


 


	
  Trademark Name

  	
   

  	
  Appl. No.

  	
   

  	
  Filing
  Date

  	
   

  	
  Reg. No.

  	
   

  	
  Reg. Date

  	
   

  	
  Class/Goods

  	
   

  	
  Status/Next
  Action Due

  	
   

  
	
  NorthWestern



  Mark is lined for colors red and blue.

  	
   

  	
  75/937,315

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,429,934

  	
   

  	
  20-Feb-2001

  	
   

  	
  Class 39 -
  Public utility services in the nature of transmission of electricity and
  electricity distribution; public utility services in the nature of natural
  gas gathering and distribution, transmission of gas through pipelines for
  others.

  	
   

  	
  Registered.

  File Affidavit of Use between 20-Feb-2006 and before 20-Feb-2007.

  	
   

  
	
  NorthWestern



  Mark is lined for colors red and blue.



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,314

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,440,778

  	
   

  	
  03-Apr-2001

  	
   

  	
  Class 42 -
  Design for others of air quality management systems, lighting systems,
  heating, ventilating and air conditioning systems, and standby electrical
  generation systems; consultation services in the field of air quality, energy
  use, conservation, and energy use auditing, security system monitoring.

  	
   

  	
  Registered.

  File Affidavit of Use between 03-Apr-2006 and before 03-Apr-2007.

  	
   

  
	
  NorthWestern



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,313

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,429,933

  	
   

  	
  20-Feb-2001

  	
   

  	
  Class 42 -
  Design for others of air quality management systems, lighting systems,
  heating, ventilating and air conditioning systems, and standby electrical
  generation systems; consultation services in the field of air quality, energy
  use, conservation, and energy use auditing, security system monitoring.

  	
   

  	
  Registered.

  File Affidavit of Use between 20-Feb-2006 and before 20-Feb-2007.

  	
   

  



 


4

















 


Trademark
Applications and Registrations Owned by Northwestern Corporation


This Group of Files are Maintained by
Leonard, Street and Deinard


Updated on August 27, 2003


 


	
  Trademark
  Name

  	
   

  	
  Appl. No.

  	
   

  	
  Filing
  Date

  	
   

  	
  Reg. No.

  	
   

  	
  Reg. Date

  	
   

  	
  Class/Goods

  	
   

  	
  Status/Next
  Action Due

  	
   

  
	
  NorthWestern



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,312

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,431,530

  	
   

  	
  27-Feb-2001

  	
   

  	
  Class 37 -
  Appliance, telephone, and security installation maintenance and repair
  services.

  	
   

  	
  Registered.

  File Affidavit of Use between 27-Feb-2006 and before 27-Feb-2007.

  	
   

  
	
  NorthWestern



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,311

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,537,252

  	
   

  	
  05-Feb-2002

  	
   

  	
  Class 38 -
  Local and long distance telephone services and providing telecommunications
  connections to global computer network cable and satellite television
  transmission services.

  	
   

  	
  Registered.

  File Affidavit of Use between 05-Feb-2007 and before 05-Feb-2008.

  	
   

  
	
  NorthWestern



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,310

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,429,932

  	
   

  	
  20-Feb-2001

  	
   

  	
  Class 39 -
  Public utility services in the nature of transmission of electricity and
  electricity distribution; public utility services in the nature of natural
  gas gathering and distribution, transmission of gas through pipelines for
  others.

  	
   

  	
  Registered.

  File Affidavit of Use between 20-Feb-2006 and before 20-Feb-2007.

  	
   

  



 


5

















 


Trademark
Applications and Registrations Owned by Northwestern Corporation


This Group of Files are Maintained by
Leonard, Street and Deinard


Updated on August 27, 2003


 


	
  Trademark
  Name

  	
   

  	
  Appl. No.

  	
   

  	
  Filing
  Date

  	
   

  	
  Reg. No.

  	
   

  	
  Reg. Date

  	
   

  	
  Class/Goods

  	
   

  	
  Status/Next
  Action Due

  	
   

  
	
  NorthWestern



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,309

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,431,529

  	
   

  	
  27-Feb-2001

  	
   

  	
  Class 42 -
  Design for others of air quality management systems, lighting systems,
  heating, ventilating and air conditioning systems, and standby electrical
  generation systems; consultation services in the field of air quality, energy
  use, conservation, and energy use auditing, security system monitoring.

  	
   

  	
  Registered.

  File Affidavit of Use between 27-Feb-2006 and before 27-Feb-2007.

  	
   

  
	
  TeamWorks



  Mark is lined for colors red and blue.



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,320

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,429,936

  	
   

  	
  20-Feb-2001

  	
   

  	
  Class 16 – A
  magazine for Northwestern Corporation partner companies.

  	
   

  	
  Registered.

  File Affidavit of Use between 20-Feb-2006 and before 20-Feb-2007.

  	
   

  
	
  TeamWorks



  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  75/937,308

  	
   

  	
  07-Mar-2000

  	
   

  	
  2,431,528

  	
   

  	
  27-Feb-2001.

  	
   

  	
  Class 16 – A
  magazine for Northwestern Corporation partner companies.

  	
   

  	
  Registered.

  File Affidavit of Use between 27-Feb-2006 and before 27-Feb-2007.

  	
   

  



 


6

















 


IP Addresses


 


NORTHWESTERN COMM SOLUTIONS
NORTHWES53-55-16


(NET-12-104-55-16-1)
12.104.55.16 - 12.104.55.31


NORTHWESTERN COMM SOLUTIONS
NORTHWES62-205-160


(NET-12-26-205-160-1)
12.26.205.160 - 12.26.205.191


NORTHWESTERN COMMUNICATION
NETWORK NORTHWES94-236


(NET-12-160-236-0-1)
12.160.236.0 - 12.160.236.255


NORTHWESTERN COMMUNICATION
SOLUTIONS NORTHWES74-144-128


(NET-12-155-144-128-1)
12.155.144.128 - 12.155.144.255


NORTHWESTERN COMMUNICATIONS
NORTHWES64-208-184


(NET-12-44-208-184-1)
12.44.208.184 - 12.44.208.191


NORTHWESTERN COMMUNICATIONS
NORTHWES66-132-48


(NET-12-27-132-48-1)
12.27.132.48 - 12.27.132.55


 


	
  OrgName:

  	
   

  	
  The Hontana
  Power Company

  
	
  OrgID:

  	
   

  	
  THEMON

  
	
  Address:

  	
   

  	
  40 E.
  Broadway

  
	
  City:

  	
   

  	
  Butte

  
	
  StateProv:

  	
   

  	
  MT

  
	
  PostalCode:

  	
   

  	
  59701

  
	
  Country:

  	
   

  	
  US

  
	
   

  	
   

  	
   

  
	
  NetRange:

  	
   

  	
  199.96.16.0
  - 199.96.27.255

  
	
  CIDR:

  	
   

  	
  199.96.15.0/21,
  199.96.24.0/22

  
	
  NetName:

  	
   

  	
  NETBLK-MONTANA
  POWER

  
	
  NotHandle:

  	
   

  	
  NET-199-96-16-0-1

  
	
  Parent:

  	
   

  	
  NET-199-0-0-0-0

  
	
  NetType:

  	
   

  	
  Direct
  Assignment

  
	
  Comment:

  	
   

  	
   

  
	
  RegDate:

  	
   

  	
  1993-12-29

  
	
  Updated:

  	
   

  	
  2001-03-09

  
	
   

  	
   

  	
   

  
	
  TechHandle:

  	
   

  	
  ZM81-ARIN

  
	
  TechName:

  	
   

  	
  Montana
  Power Company

  
	
  TechPhone:

  	
   

  	
  +1-406-497-3000

  
	
  TechEmail:

  	
   

  	
  inaccess@mtpower.com

  
	
   

  	
   

  	
   

  
	
  OrgTechHandle:

  	
   

  	
  SC1244-ARIN

  
	
  OrgTechName:

  	
   

  	
  Cleverly,
  Sean

  
	
  OrgTechPhone:

  	
   

  	
  +1-406-497-4131

  
	
  OrgTechEmail:

  	
   

  	
  Sean.Cleverly@northwestern.com

  



 


Sprint NETBLK-SPRINT-BLKG (NET-206-104-0-0-1)

206.104.0.0 - 206.107.255.255


NORTHWESTERN CORPORATION SPRINT-CE6BEB5 (NET-206-107-235-0-1)

206.107.235.0 - 206.107.235.255


 


Montana Power Company (MONTAN)


Montana Power Company Colstrip
Project (MPCCP)


Montana Power Company
(ZM81-ARIN)        inaccess@mtpower.com
+ 1-406-497-3000


Montana Power Company
MONTANAPOWER


 


7

















 


NET-192-58-136-0-1)
192.68.136.0 - 192.68.136.255


Montana Power Company
MONTANAPWR2 (NET-192-175-2-0-1)


192.175.2.0 - 192.175.2.255


Montana Power Company
MONTANAPWR3 (NET-192-175-3-0-1)


192.175.3.0 - 192.175.3.255


Montana Power Company
MONTANAPWR4 (NET-192-175-4-0-1)


192.175.4.0 - 192.175.4.255


Montana Power Company
MONTANAPWR5 (NET-192-175-5-0-1)


192.175.5.0 - 192.175.5.255


Montana Power Company
MONTANAPWR1 (NET-192-175-1-0-1)


192.175.1.0 - 192.175.1.255


Montana Power Company Colstrip
Project COLSTRIP (NET-199-5-162-0-1)


199.5.162.0 - 199.5.162.255


 


Domain
Names


 


	
  10/15/2001

  	
   

  	
  bluedotdirect.com

  
	
  10/15/2001

  	
   

  	
  bluedotservices.com

  
	
  12/7/2001

  	
   

  	
  northwestern.com

  
	
  11/22/2000

  	
   

  	
  northwesterncommunications.com

  
	
  11/22/2000

  	
   

  	
  northwesterncommuity.com

  
	
  12/2/1999

  	
   

  	
  northwesternenergy.com

  
	
  8/25/2000

  	
   

  	
  northwesterngrowth.com

  
	
  5/9/2000

  	
   

  	
  northwesternonline.com

  
	
  5/9/2000

  	
   

  	
  northwesternonline.net

  
	
  12/2/1999

  	
   

  	
  northwesternpublic.com

  
	
  12/2/1999

  	
   

  	
  northwesternservice.com

  
	
  12/2/1999

  	
   

  	
  northwesternservices.com

  
	
  12/2/1999

  	
   

  	
  northwesternsucks.com

  
	
  9/23/2001

  	
   

  	
  norworld.com

  
	
  8/25/2001

  	
   

  	
  nwecs.com

  
	
  4/4/2001

  	
   

  	
  nwps.com

  
	
  3/30/2001

  	
   

  	
  teamnor.com

  
	
  5/9/2000

  	
   

  	
  teamnor.net

  



 


8

















 


NorthWestern Energy Division of NorthWestern
Corporation


 


SCHEDULE A


 


TRADEMARKS


 


Federal
Registrations


 


	
  MARK

  	
   

  	
  REGISTRATION

  NUMBER

  	
   

  	
  REGISTRATION

  DATE

  	
   

  
	
  EFFICIENCY E+PLUS and Design

  	
   

  	
  2,513,688

  	
   

  	
  12/04/2001

  	
   

  
	
  MPC THE SMART CHOICE

  	
   

  	
  2,284,443

  	
   

  	
  10/12/1999

  	
   

  



 


Montum
Registrations


 


	
  MARK

  	
   

  	
  REGISTRATION

  NUMBER

  	
   

  	
  REGISTRATION

  DATE

  	
   

  
	
  ENERGIZING
  MONTANA

  	
   

  	
  T021722

  	
   

  	
  7/12/2001

  	
   

  
	
  MTENERGY.COM

  	
   

  	
  T021323

  	
   

  	
  1/10/2001

  	
   

  
	
  MONTANAENERGYCHOICE.COM

  	
   

  	
  T021322

  	
   

  	
  1/10/2001

  	
   

  
	
  E+EFFICIENCY
  PLUS

  	
   

  	
  T017293

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY
  PLUS

  	
   

  	
  T017292

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY
  PLUS

  	
   

  	
  T017291

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY
  PLUS

  	
   

  	
  T017290

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY
  PLUS

  	
   

  	
  T017289

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY
  PLUS

  	
   

  	
  T017288

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY
  PLUS

  	
   

  	
  T017287

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY
  PLUS

  	
   

  	
  T017286

  	
   

  	
  3/1/1993

  	
   

  



 


9

















 


	
  E+EFFICIENCY PLUS

  	
   

  	
  T017285

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY PLUS

  	
   

  	
  T017284

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY PLUS

  	
   

  	
  T017283

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY PLUS

  	
   

  	
  T017282

  	
   

  	
  3/1/1993

  	
   

  
	
  E+EFFICIENCY PLUS

  	
   

  	
  T017281

  	
   

  	
  3/1/1993

  	
   

  



 


10

















 


SCHEDULE B


 


COPYRIGHTS


 


	
  TITLE

  	
   

  	
  REGISTRATION
  NO.

  	
   

  	
  DATE

  	
   

  
	
  Montana Power Company, September 1982.

  	
   

  	
  TX 1-009-882

  	
   

  	
  11/9/1982

  	
   

  
	
  Safety Invader, an Electric Safety
  Education Kit

  	
   

  	
  TX 1-068-989

  	
   

  	
  2/22/1983

  	
   

  
	
  Safety Invader

  	
   

  	
  TX 1-368-702

  	
   

  	
  6/4/1984

  	
   

  
	
  Safety Invader Pretest

  	
   

  	
  TX 1-368-678

  	
   

  	
  6/4/1984

  	
   

  
	
  Safety Invader Teacher’s Guide

  	
   

  	
  TX 1-362-883

  	
   

  	
  6/4/1984

  	
   

  
	
  Safety Invader Pretest

  	
   

  	
  TX 1-667-197

  	
   

  	
  10/8/1985

  	
   

  
	
  Safety
  Invader Student Workbook: Get the Current Shooking Facts About Electrical
  Safety

  	
   

  	
  TX 1-676-313

  	
   

  	
  10/8/1985

  	
   

  
	
  Safety Invader Protest

  	
   

  	
  TX 1-709-175

  	
   

  	
  10/8/1985

  	
   

  
	
  Safety Invader: Teacher’s Guide

  	
   

  	
  TX 1-745-865

  	
   

  	
  10/8/1985

  	
   

  
	
  Safety Invader

  	
   

  	
  TX 1-760-839

  	
   

  	
  10/8/1985

  	
   

  
	
  Remembering

  	
   

  	
  VA 261-786

  	
   

  	
  4/14/1987

  	
   

  
	
  Hazardous Waste Management Plan

  	
   

  	
  TX 2-094-913

  	
   

  	
  5/28/1987

  	
   

  
	
  The
  Missouri-Madison Hydroelectric Project: Initial Stage of Consultation,
  Application for a New License

  	
   

  	
  TX 2-637-423

  	
   

  	
  8/14/1989

  	
   

  
	
  Kenny’s Curious Adventure

  	
   

  	
  TXu 465-823

  	
   

  	
  3/19/1991

  	
   

  
	
  Kenny’s Curious Adventure Poster, Col.
  Drawing

  	
   

  	
  VAu 209-062

  	
   

  	
  6/27/1991

  	
   

  
	
  Heghen Development Plan, Elevation &
  Sections: Missouri-Madison Project

  	
   

  	
  TX 3-167-335

  	
   

  	
  10/2/1991

  	
   

  
	
  Draft
  Application for A New License: The Missouri-Madison Hydroelectric Project
  (FERC project no. 2188)

  	
   

  	
  TX 3-370-505

  	
   

  	
  4/23/1992

  	
   

  
	
  Missouri-Madison
  Hydroelectric Project (FERC project no. 2188): cultural resource management

  	
   

  	
  TX 3-376-190

  	
   

  	
  8/7/1992

  	
   

  
	
  Missouri-Madison
  Hydroelectric Project Report on Intensive Pedestrian Survey for Cultural
  Resources and Recommendations for Testing

  	
   

  	
  TX 3-376-351

  	
   

  	
  8/7/1992

  	
   

  



 


11

















 


	
  Testing and
  Evaluation of Prehistoric and Historic Archaeological Properties on the
  Hegben, Madison, Holter and Ryan Developments

  	
   

  	
  TX 3-390-144

  	
   

  	
  8/7/1992

  	
   

  
	
  Missouri-Madison
  Hydroelectric Project Report on Survey Stage 1 for Cultural Resources and
  Recommendations for Stage II

  	
   

  	
  TX 3-395-446

  	
   

  	
  8/7/1992

  	
   

  
	
  Missouri-Madison
  Hydroelectric Project Report on Culture Resource Assessment Studies on the
  Morony Development, 1992 Field Season

  	
   

  	
  TX 3-424-450

  	
   

  	
  10/20/1992

  	
   

  
	
  1991
  Missouri-Madison Hydroelectric Project Report on Resource Inventory and
  Assessment Studies on the Morony, Hegben and Holter Developments

  	
   

  	
  TX 3-424-451

  	
   

  	
  10/20/1992

  	
   

  
	
  The Missouri-Madison Hydroelectric Project
  (FERC project no. 2188)

  	
   

  	
  TX 3-524-068

  	
   

  	
  3/16/1993

  	
   

  
	
  Emergency Home Preparedness Guide

  	
   

  	
  TX 3-778-016

  	
   

  	
  3/10/1994

  	
   

  
	
  Plugging into Montana's Electrical Future

  	
   

  	
  TX 3-742-414

  	
   

  	
  3/16/1994

  	
   

  
	
  LeaderScan

  	
   

  	
  Txu 794-643

  	
   

  	
  4/29/1997

  	
   

  



 


COPYRIGHTS – Prior to 1978


 


	
  TITLE

  	
   

  	
  REGISTRATION
  NO.

  	
   

  	
  DATE

  	
   

  
	
  The Montana
  Power Company. Center Special V-87629, laydown from v-77582. Sheet 21/2”
  x 6’  . Lithograph.

  	
   

  	
  Registered
  in the name of American Bank Note Co., under K 3154 following publication
  June 3, 1946

  	
   

  	
  6/13/1946

  	
   

  
	
  The Montana
  Power Company; laydown from V-87629A and V-68880 (Center special V-91689)

  	
   

  	
  Registered
  in the name of American Bank Note Company, under K 20893 following
  publication May 24, 1949

  	
   

  	
  5/24/1949

  	
   

  
	
  The Montana
  Power Company (MTP); research information report, October 7, 1974

  	
   

  	
  Registered
  in the name of Baker, Weeks and Company, Inc. under A 601575 following
  publication 10/7/1974

  	
   

  	
  10/7/1974

  	
   

  



 


12

















 


	
  The Montana Power Company (MTP) July 9, 1975

  	
   

  	
  Registered
  in the name of Baker, Weeks and Company, Inc. Under A 687071 following
  publication July 9, 1975

  	
   

  	
  7/9/1975

  	
   

  
	
  The Montana
  Power Company: The Habitat Diversity and Utilization Analysis of the Major
  Wildlife Species on a Portion of the Colstrip; 10x20 area, 1973-75, Project
  122-30-A, June 30, 1976.

  	
   

  	
  Registered
  in the name of Boon Inc., under A 8131856 following publication 7/16/1976

  	
   

  	
  7/16/1976

  	
   

  
	
  The Montana
  Power Company; action recommendation, December 1977. By James Mason McCabe.
  Appl. author: Donaldson, Lufkin and Jenrette Securities Corporation.

  	
   

  	
  Registered
  in the name of Donaldson, Luflkin and Jenrette Securities Corporation, under
  A 930093 following publication 12/20/1977

  	
   

  	
  12/20/1977

  	
   

  
	
  Montana
  Power Co. and Subsidiary Companies. Properties and power developments. Size
  71⁄2 by 211⁄2 inches

  	
   

  	
  Registered
  in the name of Geo. H. Ellis Co., under F 24210 following publication
  1/20/1914

  	
   

  	
  1/20/1914

  	
   

  
	
  Montana
  Power Co. Properties and power developments. Sheet, map, printed on both
  sides, 81⁄2 by 14 inches.

  	
   

  	
  Registered
  in the name of Geo. H. Ellis Co., under A 395780 following publication
  3/13/1915

  	
   

  	
  3/13/1915

  	
   

  
	
  Montana
  Power Co. Properties and power developments, Sheet, col. map, printed on both
  sides, 14 x 81⁄2 inches.

  	
   

  	
  Registered
  in the name of Geo. H. Ellis Co., under A 495063 following publication
  3/7/1918

  	
   

  	
  3/7/1918

  	
   

  



 


13

















 


SCHEDULE
C


 


PATENTS


 


	
  Patent No.

  	
   

  	
  Description

  	
   

  	
  Filed Date

  	
   

  	
  Issued
  Date

  	
   

  
	
  US 4,441,135

  	
   

  	
  Three-phase
  power transmission line phase-to-ground fault responder

  	
   

  	
  Aug. 6, 1982

  	
   

  	
  Apr. 3, 1984

  	
   

  
	
  US 4,513,340

  	
   

  	
  Power
  transmission line protective apparatus

  	
   

  	
  Dec. 13, 1982

  	
   

  	
  Apr. 23, 1985

  	
   

  
	
  US 4,670,956

  	
   

  	
  Tool for
  high voltage transmission lines

  	
   

  	
  Mar. 3, 1986

  	
   

  	
  Jun. 9, 1987

  	
   

  
	
  US 5,183,102

  	
   

  	
  Heating and
  cooling system

  	
   

  	
  Nov. 15, 1991

  	
   

  	
  Feb. 2, 1993

  	
   

  



 


14

















 


SCHEDULE D


 


DOMAIN NAMES


 


MTPOWER.COM


 


15

















 


Trademark Application Owned by Northwestern
Energy Development, LLC


These Files are Maintained by Leonard, Street
and Deinard


Updated on August 27, 2003


 


	
  Trademark Name

  	
   

  	
  Appl. No.

  	
   

  	
  Filing
  Date

  	
   

  	
  Reg. No.

  	
   

  	
  Reg. Date

  	
   

  	
  Class/Goods

  	
   

  	
  Status/Next
  Action Due

  	
   

  
	
  MONTANA
  FIRST MEGAWATTS

  

  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  78/071,522

  	
   

  	
  28-Jun-2001

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Class 39:
  Utility services, namely, transmission of electricity;

  Class 40: Generation and production of electricity.

  	
   

  	
  Pending.

  Notice of Allowance date 12-Nov-2002.

  File Statement of Use and/or 2nd Extension
  Request before 12-Nov-2003.

  	
   

  
	
  NORTHWESTERN
  ENERGY

  

  This File Maintained by Leonard, Street and
  Deinard

  	
   

  	
  78/071,535

  	
   

  	
  28-Jun-2001

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Class 39:
  Utility services, namely, generation, production and distribution of
  electricity, natural gas, propane and fuel oil;

  Class 40: Generation and production of electricity, natural gas, propane and
  fuel oil.

  	
   

  	
  Pending.
  Application published for opposition on 03-Jun-2003.

  	
   

  



 


16

















 


Schedule 5.28


 


Labor Matters


 


	
  Title Agreement

  	
   

  	
  Union

  	
   

  	
  Employees
  Covered

  	
   

  	
  Term

  	
   

  
	
  Collective
  Bargaining Agreement (CBA)/ Labor Agreement (The Montana Power Company), as
  amended pursuant to September 2001 Labor Negotiations (as set forth in
  Transmittal Letter dated 9/25/01)

  	
   

  	
  Local 41 and
  459 of the United Association of Journeyman and Apprentices of the Plumbing
  and Pipefitting Industry of the United States and Canada

  	
   

  	
  All
  employees of the Company in or in the immediate vicinity of towns: Anaconda,
  Deer Lodge, Butte, Dillion, Whitehall & Helena, MT who are classified on
  the Company payroll as Plumbers, Steam Fitters, Gas Fitters, Gas Servicemen
  and Gas Apprentices who are members of Local No. 41 or the same types of
  employees in

  Missoula and Hamilton, MT who are members of Local No. 459.

  	
   

  	
  6/1/98 –
  5/30/01 (original)

  

  6/1/01 – 5/31/04 (as amended)

  	
   

  
	
  Collective
  Bargaining Agreement (CBA)/Labor Agreement (The Montana Power Company), as
  amended pursuant to June 2001 Labor Negotiations  (as set forth in Transmittal Letter dated 6/20/01)

  	
   

  	
  Local Union
  No. 44 (Butte, Montana) of the International Brotherhood of Electrical
  Workers, AFL-CIO

  	
   

  	
   

  	
   

  	
  5/1/98 –
  4/30/01 (original)

  

  5/1/01 – 4/30/04 (as amended)

  	
   

  
	
  Collective
  Bargaining Agreement/Labor Agreement (The Montana Power Company), as amended
  by August 2001 Labor Negotiations (as set forth in the Transmittal Letter
  dated 8/30/01)

  	
   

  	
  Butte
  Teamsters’ Union, Local No. 2 (Affiliated with the International Brotherhood
  of Teamsters and Joint Council of Teamsters #3)

  	
   

  	
  Employees in
  Silver Bow County, MT, classified as Truck Drivers, Garagemen, Warehousemen,
  and Gas Meter Repairmen

  	
   

  	
  7/1/98 –
  6/30/01 (original)

  

  7/1/01 – 6/30/04 (as amended)

  	
   

  
	
  Collective
  Bargaining Agreement (CBA)/Labor Agreement (The Montana Power Company), as
  amended by the August 2001 Labor Negotiations (as set forth in the
  Transmittal Letter dated 8/30/01)

  	
   

  	
  International
  Association of Machinists and Aerospace Workers District Lodge Local Union
  No. 88, No. 86 (Union)

  	
   

  	
  All
  employees of The Montana Power Company performing machinists work in Silver
  Bow County and Missoula, MT, shall be members of the Butte Machinist’ Union,
  No. 88, District Lodge No. 86, in good standing

  	
   

  	
  7/1/98 –
  6/30/01 (original)

  

  7/1/01 – 6/30/04 (as amended)

  	
   

  



 


1

















 


 


	
  Title Agreement

  	
   

  	
  Union

  	
   

  	
  Employees
  Covered

  	
   

  	
  Term

  	
   

  
	
  Collective
  Bargaining Agreement (CBA)/ Labor Agreement (The Montana Power Company), as
  amended by July 2001 Labor Negotiations (as set forth in the Transmittal
  Letter dated 8/1/01)

  	
   

  	
  Paper,
  Allied Chemical and Energy Workers’ International Union AFL-CIO, CLC (Union),
  Local No. 2-493, Cut Bank, MT

  	
   

  	
  Production
  (operation) and maintenance employees of the Company within the enlarged unit
  determined by the National Labor Relations Board in Case No. 19-RC-1586 but
  excluding certain employees as pursuant to the National Labor Relations Act,
  as amended

  	
   

  	
  6/21/98 –
  6/20/01 (original)

  

  6/21/01 – 6/20/04 (as amended)

  	
   

  
	
  Collective
  Bargaining Agreement (CBA)/Labor Agreement (The Montana Power Company), as
  amended by October 2001 Labor Negotiations (as set forth in the Transmittal
  Letter dated 10/17/01)

  	
   

  	
  Kalispell
  Unit of Hourly Gas Employees (Union)

  	
   

  	
  All
  employees of the Company in Kalispell District who are employed in natural
  gas work and who are classified on the Company payroll as Steam Fitters, Gas
  Fitters, Gas Servicemen, Gas Apprentices, and Installers

  	
   

  	
  9/1/98 –
  8/31/01 (original)

  

  9/1/01 – 8/31/04 (as amended)

  	
   

  
	
  Plumbers and
  Pipefitters National Pension Fund Revised Standard Form of Participation
  Agreement dated May 15, 2002 (NorthWestern Energy, LLC)

  	
   

  	
  Plumbers and
  Pipefitters National Pension Fund Local Union No 41 & 459 United
  Association

  	
   

  	
  Journeyman,
  Apprentice, Foreman and other

  	
   

  	
  3/02 –
  5/31/04

  	
   

  



 


2

















 


Schedule 5.32


 


Borrowing Base
Inventory


 


Schedule
to be delivered within ten Business Days and subject to Agent’s satisfaction,
in its sole discretion.


 

















 


Schedule 5.33


 


Principal Real
Properties


 


Schedule to be delivered within ten Business
Days and subject to Agent’s satisfaction, in its sole discretion.


 

















 


SCHEDULE 6.20


 


1.             Expanets
and its Subsidiaries, Blue Dot and its Subsidiaries, and other Excluded
Subsidiaries


 


2.             The
real estate listed on the attached page


 


1

















 


EXCESS PROPERTIES - TO BE
RELEASED FROM LIEN OF MORTGAGE INDENTURES


 


	
  Property Name

  	
   

  	
  County

  	
   

  	
  Purchaser

  	
   

  
	
  MONTANA

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Townsend Shop/Office

  	
   

  	
  Benchwater

  	
   

  	
  Robert C
  & Gaylena [ILLEGIBLE]

  	
   

  
	
  Red Lodge Northside Substation

  	
   

  	
  Carbon

  	
   

  	
  City of Red
  Lodge

  	
   

  
	
  Land in Cascade County

  	
   

  	
  Cascade

  	
   

  	
  King
  Properties

  	
   

  
	
  McGregor Meadows

  	
   

  	
  Flathead

  	
   

  	
  Clark D.
  & Sharon M. [ILLEGIBLE]

  	
   

  
	
  Kalispell Service Center

  	
   

  	
  Flathead

  	
   

  	
  Montana
  Department of Transportation (MDOT)

  	
   

  
	
  Boroman [ILLEGIBLE] Substation Site

  	
   

  	
  Gallatin

  	
   

  	
  Douglas Lance
  Smith

  	
   

  
	
  Jack Rabbit Substation MDOT Highway Proj

  	
   

  	
  Gallatin

  	
   

  	
  Montana
  Department of Transportation (MDOT)

  	
   

  
	
  Boroman Northside Substation land

  	
   

  	
  Gallatin

  	
   

  	
  Tengelsan
  Family Limited Partnership

  	
   

  
	
  Marysville Substation

  	
   

  	
  Lewis and
  Clark

  	
   

  	
  Nick A.
  & Darcy A. [ILLEGIBLE]

  	
   

  
	
  Helena Service Center Land

  	
   

  	
  Lewis and
  Clark

  	
   

  	
  Montana
  Department of Transportation (MDOT)

  	
   

  
	
  Alberton Gorge

  	
   

  	
  [ILLEGIBLE]

  	
   

  	
  Currently
  None

  	
   

  
	
  Grant Creek Substation

  	
   

  	
  Missoula

  	
   

  	
  Dennis R.
  Washington

  	
   

  
	
  Missoula Service Center excess parcel

  	
   

  	
  Missoula

  	
   

  	
  Currently
  None

  	
   

  
	
  Livingston Indoor Substation excess parcel

  	
   

  	
  Park

  	
   

  	
  Fred J &
  F Thomas Shellerberg

  	
   

  
	
  Thompson Falls House and Land

  	
   

  	
  Sanders

  	
   

  	
  Elvia
  [ILLEGIBLE]

  	
   

  
	
  Buffalo Rapids [ILLEGIBLE]

  	
   

  	
  Sanders

  	
   

  	
  Confederated,
  [ILLEGIBLE] & [ILLEGIBLE] (CSKT)

  	
   

  
	
  Columbus substation site

  	
   

  	
  Stillwater

  	
   

  	
  Lance Hogan

  	
   

  
	
  Glasgow polo yard

  	
   

  	
  Valley

  	
   

  	
  John
  [ILLEGIBLE]  Constructions

  	
   

  
	
  Billings Service Center excess parcel

  	
   

  	
  [ILLEGIBLE]

  	
   

  	
  [ILLEGIBLE]
  Kreitzberg

  	
   

  
	
  Montana Subtotal

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


	
  Property Name

  	
   

  	
  County

  	
   

  	
  Purchaser

  	
   

  
	
  SOUTH DAKOTA

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Former Corporate Office, Huron

  	
   

  	
  Bendle

  	
   

  	
  Currently
  None

  	
   

  
	
  Excess Property Adjacent to Frank Avenue
  Substation

  	
   

  	
  Bendle

  	
   

  	
  [ILLEGIBLE]
  and [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Former Pole Storage Yard

  	
   

  	
  Bendle

  	
   

  	
  State of
  South Dakota (South Dakota State Fair)

  	
   

  
	
  Excess Property Adjacent to Kansas Avenue
  Substation

  	
   

  	
  Bendle

  	
   

  	
  Currently
  None

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Former [ILLEGIBLE] Air Plant Property

  	
   

  	
  Brookings

  	
   

  	
  Currently
  None

  	
   

  
	
  Former Armour Substation Property

  	
   

  	
  Charties Mix

  	
   

  	
  Currently
  None

  	
   

  
	
  Former Webster Office

  	
   

  	
  Day

  	
   

  	
  City of
  Webster

  	
   

  
	
  South Dakota Subtotal

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NEBRASKA

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Former
  [ILLEGIBLE] Air Plant Property

  Nebraska Subtotal

  	
   

  	
  Buffalo

  	
   

  	
  Currently
  None

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total of All Three States

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


2

















 


SCHEDULE 6.21


 


PERMITTED INVESTMENTS


 


Schedule to be delivered within five Business Days and subject to
Agent’s satisfaction, in its sole discretion.