EXECUTION VERSION









Exhibit 10(b)(1)




EXECUTION VERSION




 








 









CREDIT

AGREEMENT




 




among




 




NORTHWESTERN

CORPORATION,




as

Borrower,




 




The

Several Lenders from Time to Time Parties Hereto,




 




CREDIT

SUISSE FIRST BOSTON,




CIBC

INC.,




ABN AMRO

BANK N.V.




and




BARCLAYS

CAPITAL,




as

Co-Arrangers




 




and




 




CREDIT

SUISSE FIRST BOSTON,




as

Administrative Agent,




Lead

Arranger and Sole Book Runner




 




Dated as

of January 14, 2002








 









 













 




TABLE OF CONTENTS




 




	

  ARTICLE 1.  DEFINITIONS


  
	

   


  
	

   


  	

  1.1


  	

  Defined

  Terms


  
	

   


  	

  1.2


  	

  Other Definitional

  Provisions


  
	

   


  	

   


  	

   


  
	

  ARTICLE

  2.  AMOUNT AND TERMS OF COMMITMENTS


  
	

   


  
	

   


  	

  2.1


  	

  Commitments


  
	

   


  	

  2.2


  	

  Notes


  
	

   


  	

  2.3


  	

  Procedure for Borrowings


  
	

   


  	

  2.4


  	

  Fees


  
	

   


  	

  2.5


  	

  Optional

  and Mandatory Termination or Reduction


  
	

   


  	

  2.6


  	

  Optional and

  Mandatory Prepayments


  
	

   


  	

  2.7


  	

  Interest

  Rate Conversion and Continuation Options


  
	

   


  	

  2.8


  	

  Maximum

  Amounts of Eurodollar Tranches


  
	

   


  	

  2.9


  	

  Interest

  Rates; Default Rate Payment Dates


  
	

   


  	

  2.10


  	

  Computation of Interest


  
	

   


  	

  2.11


  	

  Inability

  to Determine Interest Rate


  
	

   


  	

  2.12


  	

  Pro

  Rata Treatment and Payments; Funding Reliance


  
	

   


  	

  2.13


  	

  Illegality


  
	

   


  	

  2.14


  	

  Requirements of Law


  
	

   


  	

  2.15


  	

  Taxes


  
	

   


  	

  2.16


  	

  Indemnity


  
	

   


  	

  2.17


  	

  Discretion

  of Lender as to Manner of Funding


  
	

   


  	

  2.18


  	

  Change

  of Lending Office; Replacement Lender


  
	

   


  	

  2.19


  	

  [Intentionally Omitted]


  
	

   


  	

  2.20


  	

  Additional

  Provisions relating to Letters of Credit.


  
	

   


  	

  2.21


  	

  Additional Provisions

  Relating to Swingline Loans.


  
	

   


  	

  2.22


  	

  Participations

  in Letters of Credit and Swingline Loans.


  
	

   


  	

  2.23


  	

  NW Restructuring.


  
	

   


  	

   


  	

   


  
	

  ARTICLE

  3.  REPRESENTATIONS AND WARRANTIES


  
	

   


  
	

   


  	

  3.1


  	

  Financial Condition


  
	

   


  	

  3.2


  	

  No Change


  
	

   


  	

  3.3


  	

  Corporate

  Existence; Compliance with Law


  
	

   


  	

  3.4


  	

  Corporate

  Power; Authorization; Enforceable Obligations


  
	

   


  	

  3.5


  	

  No

  Legal Bar


  
	

   


  	

  3.6


  	

  No Material Litigation


  
	

   


  	

  3.7


  	

  No

  Default


  
	

   


  	

  3.8


  	

  Ownership of Property;

  Liens


  
	

   


  	

  3.9


  	

  [Intentionally

  Omitted]


  
	

   


  	

  3.10


  	

  Intellectual Property


  
	

   


  	

  3.11


  	

  No Burdensome

  Restrictions


  
	

   


  	

  3.12


  	

  Taxes


  
				





 




i





























 




	

   


  	

  3.13


  	

  Margin

  Stock


  
	

   


  	

  3.14


  	

  ERISA


  
	

   


  	

  3.15


  	

  Holding

  Company; Investment Company Act; Other Regulations


  
	

   


  	

  3.16


  	

  Purpose of Loans


  
	

   


  	

  3.17


  	

  Environmental Matters


  
	

   


  	

  3.18


  	

  Insurance


  
	

   


  	

  3.19


  	

  Accuracy

  and Completeness of Information


  
	

   


  	

  3.20


  	

  Leaseholds, Permits, etc


  
	

   


  	

  3.21


  	

  No Restrictive Covenants


  
	

   


  	

  3.22


  	

  Solvency.


  
	

   


  	

  3.23


  	

  Index Debt Rating.


  
	

   


  	

  3.24


  	

  Acquisition

  Agreement; Merger.


  
	

   


  	

  3.25


  	

  Subsidiaries.


  
	

   


  	

   


  	

   


  
	

  ARTICLE 4.  CONDITIONS

  PRECEDENT


  
	

   


  
	

   


  	

  4.1


  	

  Conditions to Initial

  Loans


  
	

   


  	

  4.2


  	

  Conditions

  to Each Extension of Credit


  
	

   


  	

   


  	

   


  
	

  ARTICLE 5. 

  AFFIRMATIVE COVENANTS


  
	

   


  
	

   


  	

  5.1


  	

  Financial

  Statements


  
	

   


  	

  5.2


  	

  Certificates;

  Other Information


  
	

   


  	

  5.3


  	

  Payment and

  Performance of Obligations


  
	

   


  	

  5.4


  	

  Maintenance of Existence


  
	

   


  	

  5.5


  	

  Maintenance of

  Property; Insurance


  
	

   


  	

  5.6


  	

  Inspection

  of Property; Books and Records; Discussions


  
	

   


  	

  5.7


  	

  Notices


  
	

   


  	

  5.8


  	

  Environmental Laws


  
	

   


  	

  5.9


  	

  ERISA


  
	

   


  	

  5.10


  	

  Use

  of Proceeds


  
	

   


  	

  5.11


  	

  Margin Stock


  
	

   


  	

  5.12


  	

  Maintain

  Ownership of the Company and the Utility Business


  
	

   


  	

  5.13


  	

  Amendment of Loan

  Documents


  
	

   


  	

  5.14


  	

  Ratings


  
	

   


  	

   


  	

   


  
	

  ARTICLE

  6.  NEGATIVE COVENANTS


  
	

   


  
	

   


  	

  6.1


  	

  Financial Covenants


  
	

   


  	

  6.2


  	

  Limitation on

  Fundamental Changes


  
	

   


  	

  6.3


  	

  Limitation

  on Transactions with Affiliates


  
	

   


  	

  6.4


  	

  Limitation on Liens


  
	

   


  	

  6.5


  	

  Amendments

  of Acquisition Agreement and Organizational Documents


  
	

   


  	

  6.6


  	

  Limitation on

  Guarantee Obligations


  
	

   


  	

  6.7


  	

  Limitation on Sale of

  Assets


  
	

   


  	

  6.8


  	

  Limitation

  on Investments, Loans and Advances


  
	

   


  	

  6.9


  	

  Limitation

  on Dividends and Stock Repurchases


  
	

   


  	

  6.10


  	

  Limitation

  on Indebtedness or Mandatory Redeemable Stock


  
	

   


  	

  6.11


  	

  Limitation on

  Sales and Leasebacks


  





 




ii





























 




	

   


  	

  6.12


  	

  Limitation

  on Negative Pledge Clauses; Payment Restrictions


  
	

   


  	

  6.13


  	

  Limitation on Businesses


  
	

   


  	

  6.14


  	

  Limitation

  on Certain Prepayments and Amendments


  
	

   


  	

  6.15


  	

  Limitations

  on Subsidiaries’ Equity Interests


  
	

   


  	

   


  	

   


  
	

  ARTICLE 7.  EVENTS

  OF DEFAULT


  
	

   


  
	

   


  	

  7.1


  	

  Events

  of Default


  
	

   


  	

   


  	

   


  
	

  ARTICLE 8.  THE AGENTS


  
	

   


  
	

   


  	

  8.1


  	

  Appointment


  
	

   


  	

  8.2


  	

  Delegation of Duties


  
	

   


  	

  8.3


  	

  Exculpatory Provisions


  
	

   


  	

  8.4


  	

  Reliance by Agents


  
	

   


  	

  8.5


  	

  Notice of Default


  
	

   


  	

  8.6


  	

  Non-Reliance

  on Agents and Other Lenders


  
	

   


  	

  8.7


  	

  Indemnification


  
	

   


  	

  8.8


  	

  Agent in Its

  Individual Capacity


  
	

   


  	

  8.9


  	

  Successor

  Administrative Agent


  
	

   


  	

   


  	

   


  
	

  ARTICLE 9. 

  MISCELLANEOUS


  
	

   


  
	

   


  	

  9.1


  	

  Amendments and Waivers


  
	

   


  	

  9.2


  	

  Notice


  
	

   


  	

  9.3


  	

  No Waiver;

  Cumulative Remedies


  
	

   


  	

  9.4


  	

  Survival

  of Representations and Warranties


  
	

   


  	

  9.5


  	

  Payment

  of Expenses and Taxes; Indemnification


  
	

   


  	

  9.6


  	

  Successors

  and Assigns; Participations and Assignments


  
	

   


  	

  9.7


  	

  Adjustments; Setoff


  
	

   


  	

  9.8


  	

  Confidentiality


  
	

   


  	

  9.9


  	

  Effectiveness


  
	

   


  	

  9.10


  	

  Counterparts


  
	

   


  	

  9.11


  	

  Severability


  
	

   


  	

  9.12


  	

  Integration


  
	

   


  	

  9.13


  	

  GOVERNING

  LAW


  
	

   


  	

  9.14


  	

  Submission To

  Jurisdiction; Waivers


  
	

   


  	

  9.15


  	

  Acknowledgments


  
	

   


  	

  9.16


  	

  Waivers of Jury Trial


  





 




iii





























 




	

  EXHIBITS AND SCHEDULES


  
	

   


  
	

  Annex A


  	

  Pricing

  Grid


  
	

  Exhibit

  A-1


  	

  Form of Revolving Credit Note


  
	

  Exhibit

  A-2


  	

  Form of Term Note


  
	

  Exhibit

  B-1


  	

  Form of Notice of Borrowing


  
	

  Exhibit

  B-2


  	

  Form of Notice of Request for Letter of

  Credit


  
	

  Exhibit

  B-3


  	

  Form of Notice of Borrowing of Swingline

  Loans


  
	

  Exhibit

  B-4


  	

  Form of Notice of Interest Rate Conversion


  
	

  Exhibit C


  	

  Form of Closing Certificate


  
	

  Exhibit D


  	

  Form of Assignment and Assumption Agreement


  
	

  Exhibit E


  	

  Form of Compliance Certificate


  
	

  Exhibit F


  	

  Form of Pledge Agreement


  
	

   


  	

   


  
	

  Schedule I


  	

  Lending

  Offices of Lenders


  
	

  Schedule 3.4


  	

  Required

  Consents of Governmental Authorities


  
	

  Schedule 3.6


  	

  Litigation


  
	

  Schedule 3.8


  	

  Exceptions

  to Title to Borrower’s Properties


  
	

  Schedule

  3.12


  	

  Taxes


  
	

  Schedule

  3.14


  	

  ERISA


  
	

  Schedule

  3.15


  	

  Regulations

  Limiting Indebtedness


  
	

  Schedule

  3.17


  	

  Environmental

  Matters


  
	

  Schedule

  3.25


  	

  Subsidiaries


  
	

  Schedule 6.3


  	

  Transactions

  with Affiliates


  
	

  Schedule 6.6


  	

  Guarantee

  Obligations


  
	

  Schedule 6.8


  	

  Investments


  
	

  Schedule

  6.10


  	

  Indebtedness,

  Mandatory Redeemable Stock and Preferred Stock


  





 




iv





























 




CREDIT AGREEMENT, dated as of January 14, 2002,

between NORTHWESTERN CORPORATION, a Delaware corporation (the “Borrower”),

the several banks and other financial institutions from time to time party

hereto (the “Lenders”), CREDIT SUISSE FIRST BOSTON, ABN AMRO BANK N.V.,

CIBC INC. and BARCLAYS CAPITAL, as Co-Arrangers (each a “Co-Arranger”

and, collectively, the “Co-Arrangers”), and CREDIT SUISSE FIRST BOSTON,

acting through its New York Branch, as Administrative Agent (in such capacity

the “Administrative Agent ”), Lead Arranger and Sole Book Runner.




 




PRELIMINARY STATEMENTS




 




1.             The

Borrower intends to acquire (the “Acquisition”) all of the membership

interests of The Montana Power LLC, a Montana limited liability company (the “Company”),

which holds the assets and securities owned by The Montana Power Company (“MPC”)

as of September 29, 2000 (other than Entech, Inc. and its subsidiaries),

pursuant to the terms of the Unit Purchase Agreement, dated as of September 29,

2000 (as amended from time to time, the “Acquisition Agreement”), among

the Borrower, MPC, the Company and Touch America Holding, Inc. (the “Seller”).




 




2.             The

Borrower desires that, subject to the satisfaction of the conditions set forth

herein, (a) during the Availability Period (as hereinafter defined), Lenders

having Revolving Credit Commitments (as hereinafter defined) make revolving

credit loans in an aggregate principal amount not to exceed $280,000,000 at any

one time outstanding, and (b) on the Closing Date (as hereinafter defined),

Lenders having Term Loan Commitments (as hereinafter defined) make term loans

in an aggregate principal amount not to exceed $720,000,000.  The Lenders are willing to provide such

loans, subject to the terms and conditions set forth herein.




 




3.             In consideration of the foregoing

premises and the mutual covenants herein contained and for other good and

valuable consideration the receipt and sufficiency of which are hereby

acknowledged, the parties hereto, intending to be legally bound, hereby agree

as follows:




 




ARTICLE

1.  DEFINITIONS




 




1.1 Defined Terms.  As used in this Agreement, the following

terms shall have the following meanings:




 




“Acquisition”

shall have the meaning ascribed thereto in the Preliminary Statements hereof.




 




“Acquisition

Agreement” shall have the meaning ascribed thereto in the Preliminary

Statements hereof.




 




“Administrative

Agent ” shall have the meaning ascribed thereto in the heading hereto and

shall include such other Lender or financial institution as shall




 




1





























 




have

subsequently been appointed as the successor Administrative Agent pursuant to Section

8.9.




 




“Affected

Lender” shall have the meaning ascribed thereto in Section 2.18.




 




“Affiliate”

shall mean, as to any Person, any other Person which, directly or indirectly,

is in control of (including all directors and officers of such Person), is

controlled by, or is under common control with, such Person.  For purposes of this definition, “control”

of a Person shall mean the power, directly or indirectly, to direct or cause

the direction of the management and policies of such Person, whether by

ownership of voting securities, by contract or otherwise.




 




“Agents”

shall have the meaning ascribed thereto in Section 8.1.




 




“Agreement”

shall mean this Credit Agreement, as amended, supplemented or otherwise

modified from time to time.




 




“Alternate Base

Rate” shall mean, on any particular date, a rate of interest per annum equal

to the higher of




 




(a)                                  the

rate of interest most recently announced by CSFB as its prime rate in effect at

its principal office in New York City (which rate is not necessarily intended

to be the lowest rate of interest charged by CSFB in connection with extensions

of credit); and




 




(b)                                 the

Federal Funds Rate for such date plus 0.50%.




 




“Alternate Base

Rate Loans” shall mean Loans the rate of interest applicable to which is

based upon the Alternate Base Rate.




 




“Applicable

Margin” shall mean, for any day, with respect to any Alternate Base Rate

Loan or Eurodollar Loan, or with respect to the Commitment Fees payable

hereunder, as the case may be, the applicable rate per annum determined

pursuant to the Pricing Grid.




 




“Approved Fund”

shall mean, with respect to any Lender that is a fund or commingled investment

vehicle that invests in commercial loans, any other fund that invests in

commercial loans and is managed or advised by the same investment advisor as

such Lender or by an Affiliate of such investment advisor.




 




“Arranger”

shall mean CSFB and its successors.




 




“Asset Sale”

shall mean any sale, lease or other disposition (including (x) any such

transaction effected by way of merger or consolidation and (y) any

sale-leaseback transaction, whether or not involving a Financing Lease) (any

such transaction, a “disposition”), by the Borrower or any of its Subsidiaries,

of any asset, but excluding (a) any disposition of inventory, cash, Cash

Equivalents or other cash management investments or obsolete and unused or unnecessary




 




2





























 




equipment, in each

case in the ordinary course of business, (b) any disposition to the Borrower or

any of its Subsidiaries, (c) any disposition the proceeds of which will be used

to purchase assets similar to the assets disposed of (a contract for which

purchase is entered into within 180 days (and such assets are acquired within

270 days) after the date of such disposition) but only to the extent such

proceeds are actually so used, (d) any sale-leaseback transaction entered into

in respect of property acquired by the Borrower or any of its Subsidiaries, if

such sale-leaseback transaction is entered into within 180 days after the date

of such acquisition, (e) any sale of receivables (including in connection with

securitizations thereof) effected to finance working capital requirements of

the Borrower and its Subsidiaries, (f) any disposition of the assets of a

Special Purpose Subsidiary, to the extent that the Net Cash Proceeds thereof

are retained by a Special Purpose Subsidiary to finance (i) the development or

operation of the assets it was formed to develop or (ii) activities incidental

thereto, and (g) any other disposition of assets by the Borrower or any of its

Subsidiaries the aggregate Net Cash Proceeds (including for purposes hereof any

deferred payments) of which, for all such dispositions during any fiscal year,

do not exceed $50,000,000 during any fiscal year.




“Assignee”

shall have the meaning ascribed thereto in Section 9.6(c).




 




“Assignment and

Assumption Agreement” shall have the meaning ascribed thereto in Section

9.6(c).




 




“Availability

Period” shall mean the period from and including the Closing Date to, but

not including, the Termination Date, or such earlier date on which the Revolving

Credit Commitments shall terminate as provided herein.




 




“Benefited

Lender” shall have the meaning ascribed thereto in Section 9.7(a).




 




“Borrower”

shall have the meaning ascribed thereto in the heading hereto.




 




“Borrowing Date”

shall mean any Business Day specified in a notice pursuant to Section 2.3

as a date on which the Borrower requests that the Lenders make Loans hereunder.




 




“Business”

shall have the meaning ascribed thereto in Section 3.17(a).




 




“Business Day”

shall mean (a) a day other than a Saturday, Sunday or other day on which

commercial banks in New York City are authorized or required by law to close,

and (b) with respect to the date of




 




(i)            making or continuing any Loans as,

or converting any Loans from or into, Eurodollar Loans,




 




3





























 




(ii)           making any payment or prepayment or

principal of or payment of interest on any portion of the principal amount of

any Loans being maintained as Eurodollar Loans, or




 




(iii)          the Borrower giving any notice (or the

number of Business Days to elapse prior to the effectiveness thereof) in

connection with any matter referred to in the immediately preceding clause

(b)(i) or (b)(ii),




 




any such day on

which dealings in Dollars are also carried on in the interbank market in

London, England.




 




“Capital

Expenditures” of any Person shall mean, for any period, without

duplication, all expenditures (whether paid in cash or other consideration)

during such period that, in accordance with GAAP, are or should be included in

additions to property, plant and equipment or similar items reflected in the

statement of cash flows for such period for such Person.




 




“Capital Stock”

shall mean any and all shares, interests, participations or other equivalents

(however designated) of capital stock of a corporation, any and all equivalent

ownership interests in a Person (other than a corporation) and any and all

warrants or options to purchase any of the foregoing.




 




“Cash

Equivalents” shall mean (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 Standard & Poor’s 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 Standard &

Poor’s 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 Standard & Poor’s or by Moody’s, or publicly traded or open-end bond

funds that invest exclusively in such tax-exempt debt obligations.




 




“Change of

Control” shall mean 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;




 




4





























 




(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;




 




(c)           the Borrower shall cease to own,

beneficially or of record, all of the outstanding Capital Stock of the Company

other than as a result of a merger of the Company with and into the Borrower;

or




 




(d)           the Borrower shall be liquidated or

dissolved.




 




“Closing Date”

shall mean the date on which the conditions precedent set forth in Section

4.1 shall be satisfied or waived.




 




“Co-Arrangers”

shall have the meaning ascribed thereto in the heading hereto.




 




“Code”

shall mean the Internal Revenue Code of 1986, as amended from time to time.




 




“Collateral”

shall have the meaning ascribed thereto in the Pledge Agreement.




 




“Collateral

Agent” shall have the meaning ascribed thereto in the Pledge Agreement.




 




“Collateral

Documents” shall mean a collective reference to the Pledge Agreement and

such other documents executed and delivered in connection with the attachment

and perfection of the Collateral Agent’s security interest and liens arising

thereunder, including, without limitation UCC financing statements filed in

connection therewith.




 




“Commitment”

shall mean, as applicable, a Term Loan Commitment, a Revolving Credit

Commitment or a Swingline Commitment.




 




“Commitment Fee”

shall have the meaning ascribed thereto in Section 2.4.




 




“Commitment

Percentage” shall mean, as to any Lender, at any time, the percentage which

such Lender’s Revolving Credit Commitment (or after the Termination Date, such

Lender’s Revolving Credit Loans) plus such Lender’s Term Loan Commitment

(or after the Closing Date, such Lender’s Term Loans) then constituting the

aggregate Revolving Credit Commitments (or after the Termination Date, all

Revolving Credit Loans) plus the aggregate Term Loan Commitments (or

after the Closing Date, all Term Loans), in each case outstanding at such time.




 




5





























 




“Commonly

Controlled Entity” shall mean an entity, whether or not incorporated, which

is under common control with the Borrower and/or any Subsidiary within the

meaning of Section 4001(a)(14) of ERISA or is part of a group which

includes the Borrower and which is treated as a single employer under Section

414 of the Code.




 




“Company”

shall have the meaning ascribed thereto in the Preliminary Statement hereof.




 




“Compliance

Certificate” shall have the meaning ascribed thereto in Section 5.2(b).




 




“Consolidated

Group” shall mean the Borrower and its Consolidated Subsidiaries after

giving effect to the Acquisition.




 




“Consolidated

Recourse Interest Expense” shall mean, for any period, the aggregate amount

of interest expense of the Consolidated Group minus, to the extent

included therein, the aggregate amount of interest accrued on Non-Recourse

Debt, determined on a consolidated basis in accordance with GAAP.




 




“Consolidated

Subsidiary” shall mean, at any time, any Subsidiary or other Person the

accounts of which are consolidated with the Borrower in its consolidated

financial statements as of such time.




 




“Contractual

Obligation” shall mean as to the Borrower or any Subsidiary, any provision

of any security issued by the Borrower or any Subsidiary or of any agreement,

instrument or other undertaking to which the Borrower or any Subsidiary is a

party or by which it or any of its property is bound.




 




“Credit Event”

shall have the meaning ascribed thereto in Section 4.2.




 




“CSFB”

shall mean Credit Suisse First Boston.




 




“Debt for

Borrowed Money” shall mean, as to any Person, without duplication, (a) all

obligations of such Person for borrowed money, (b) all obligations of such Person

evidenced by bonds, debentures, notes or similar instruments, (c) all Financing

Lease obligations of such Person, and (d) all obligations of such Person under

synthetic leases, tax retention operating leases, off-balance sheet loans or

other off-balance sheet financing products that, for tax purposes, are

considered indebtedness for borrowed money of the lessee but are classified as

operating leases under GAAP.




 




“Debt

Incurrence” shall mean the incurrence by the Borrower or any of its

Subsidiaries of Debt for Borrowed Money, other than Excluded Debt.




 




“Default”

shall mean any of the events specified in Section 7.1, whether or not

any requirement for the giving of notice, the lapse of time, or both, or any

other condition, has been satisfied.




 




6





























 




“Dollars”

and “$” shall mean dollars in lawful currency of the United States of

America.




 




“Domestic

Lending Office” shall mean, initially, the office of each Lender designated

as such in Schedule I (or the office of an Assignee designated pursuant

to an Assignment and Assumption Agreement), and thereafter, such other office

of such Lender, if any, which shall be making or maintaining Alternate Base

Rate Loans as may be designated from time to time by notice from such Lender to

the Borrower and the Administrative Agent.




 




“Environmental

Laws” shall mean any and all foreign, Federal, state, local or municipal

laws, rules, orders, regulations, statutes, ordinances, codes, decrees,

judgments, permits, licenses, registrations or authorizations or requirements

of any Governmental Authority or other Requirements of Law (including common

law) regulating, relating to or imposing liability or standards of conduct

concerning the health and safety of humans and other living organisms as it

relates to exposures to Materials of Environmental Concern, protection of

natural resources or the environment, including the manufacture, distribution

in commerce, and use of, or Release to the environment of, Materials of

Environmental Concern, as now or may at any time hereafter be in effect.




 




“Equity

Issuance” shall mean (a) the issuance of any Capital Stock by the Borrower

or any of its Subsidiaries, other than (i) Capital Stock issued by a Special

Purpose Subsidiary, to the extent that the Net Cash Proceeds thereof are

retained by a Special Purpose Subsidiary to finance (x) the development or

operation of the assets it was formed to develop or (y) activities incidental

thereto), (ii) Capital Stock issued to the Borrower or any of its Wholly-Owned

Subsidiaries, (iii) directors’ qualifying shares, (iv) Capital Stock issued in

the ordinary course of business in connection with director or employee stock

purchase plans and arrangements and other director or employee compensation

arrangements, and (v) Capital Stock issued in the ordinary course of business

under any dividend reinvestment and stock purchase plan maintained by the

Borrower; or (b) to the extent not excluded in clause (a) above, any

contribution to the capital of the Borrower or any of its Subsidiaries, other

than a contribution by any Person to the capital of a Special Purpose

Subsidiary provided the Net Cash Proceeds thereof are retained by a Special

Purpose Subsidiary to finance (x) the development or operation of the assets it

was formed to develop or (y) activities incidental thereto or a contribution by

the Borrower or any of its Subsidiaries to one of its Subsidiaries.




 




“ERISA”

shall mean the Employee Retirement Income Security Act of 1974, as amended from

time to time.




 




“Eurodollar

Base Rate” shall mean, with respect to any Eurodollar Loan for any Interest

Period, the rate per annum determined by the Administrative Agent at

approximately 11:00 a.m. (London time) on the date which is two Business Days

prior to the beginning of such Interest Period by reference to the




 




7





























 




British Bankers’ Association Interest Settlement Rates for deposits in

Dollars (as set forth by any service selected by the Administrative Agent which

has been nominated by the British Bankers’ Association as an authorized

information vendor for the purpose of displaying such rates) for a period equal

to such Interest Period; provided that, to the extent that an interest

rate is not ascertainable pursuant to the foregoing provisions of this

definition, the “Eurodollar Rate” shall be the interest rate per annum

determined by the Administrative Agent to be the average of the rates per annum

at which deposits in Dollars are offered for such Interest Period to major

banks in the London interbank market in London, England by the Administrative

Agent at approximately 11:00 a.m. (London time) on the date which is two

Business Days prior to the beginning of such Interest Period.  Each determination by the Administrative

Agent pursuant to this definition shall be conclusive absent manifest error.




 




“Eurodollar

Loans” shall mean Loans the rate of interest applicable to which is based

upon the Eurodollar Rate.




 




“Eurodollar

Office” shall mean, initially, the office of each Lender designated as such

in Schedule I (or the office of an Assignee designated pursuant to an

Assignment and Assumption Agreement), and thereafter, such other office of such

Lender, if any, which shall be making or maintaining Eurodollar Loans as may be

designated from time to time by notice from such Lender to the Borrower and the

Administrative Agent.




 




“Eurodollar

Rate” shall mean with respect to each day during each Interest Period

pertaining to a Eurodollar Loan, a rate per annum determined for such day in

accordance with the following formula:




 








	

   


  	

  Eurodollar


  	

  Base


  	

  Rate


  
	

  1.00 - Eurodollar Reserve Requirements


  










 




“Eurodollar

Reserve Requirements” shall mean, for any day as applied to a Eurodollar

Loan, the aggregate (without duplication) of the rates (expressed as a decimal)

of reserve requirements in effect on such day (including, without limitation,

basic, supplemental, marginal and emergency reserves) under any regulations of

the Board of Governors of the Federal Reserve System or other Governmental

Authority having jurisdiction with respect thereto) dealing with reserve

requirements prescribed for eurocurrency funding (currently referred to as

“Eurocurrency Liabilities” in Regulation D of such Board) maintained by a

member bank of such System.




 




“Eurodollar

Tranche” shall mean either (a) all Term Loans which consist of Eurodollar

Loans incurred on the Closing Date (or which result from continuations or

conversions on a given date after the Closing Date) and have the same Interest

Period, or (b) all Revolving Credit Loans which consist of Eurodollar Loans

incurred on a given date (or which result from continuations or conversions on

a given date) and having the same Interest Period.




 




8





























 




“Event of

Default” shall mean any of the events specified in Section 7.1; provided

that any requirement for the giving of notice, the lapse of time, or both, or

any other condition, has been satisfied.




 




“Excluded Debt”

shall mean (a) Debt for Borrowed Money incurred hereunder; (b) Debt for Borrowed

Money incurred by a Special Purpose Subsidiary, to the extent that the Net Cash

Proceeds thereof are retained by a Special Purpose Subsidiary that incurs such

Debt for Borrowed Money to finance (i) the development or operation of the

assets it was formed to develop or (ii) activities incidental thereto; (c) Debt

for Borrowed Money of any Person at the time such Person becomes a Subsidiary

of the Borrower, provided that such Debt for Borrowed Money was not

incurred in contemplation of such occurrence; (d) Debt for Borrowed Money

incurred by the Borrower or any Subsidiary (other than a Special Purpose

Subsidiary) incurred (i) to finance working capital needs of any such entity in

the ordinary course of business (in any event excluding Restricted Payments) or

(ii) to the extent permitted hereunder, to finance Capital Expenditures

(including fees and expenses incidental to the acquisition of the assets so

acquired); (e) Indebtedness of Montana First Megawatts LLC (or its affiliates)

in an aggregate amount not to exceed $200,000,000, which proceeds of such

Indebtedness are used to finance construction and related costs of the Montana

First Megawatts project; (f) Non-Recourse Debt of any Subsidiary; (g)

Indebtedness incurred pursuant to a credit facility under which Blue Dot

Services, Inc. is the borrower in an aggregate amount not to exceed $45,000,000

and Indebtedness incurred pursuant to a credit facility under which Expanets,

Inc. is the borrower in an aggregate amount not to exceed $150,000,000; and (h)

refinancings, replacements and extensions by the obligor thereof of any of the

foregoing (other than clause (a) above) to the extent that the principal of the

Debt for Borrowed Money so refinanced, replaced or extended is not increased as

a result thereof and the scheduled maturity date thereof is not earlier as a

result thereof (and in the case of any refinancing or replacement of

Non-Recourse Debt, after giving effect thereto, such Indebtedness constitutes

Non-Recourse Debt).




 




“FDIC”  shall mean the Federal Deposit Insurance

Corporation or any successor thereto.




 




“Federal Funds

Rate” shall mean for any particular date, the rate per annum (rounded

upwards, if necessary, to the nearest 1/100 of 1%) 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 by the Federal Reserve Bank of New York on the Business Day next

succeeding such day; provided that (a) if such day is not a Business

Day, the Federal Funds Rate for such day shall be such rate on such

transactions on the next preceding Business Day as so published on the next

succeeding Business Day, and (b) if no such rate is so published on such

next succeeding Business Day, the Federal Funds Rate for such day shall be the

average rate charged to the Administrative Agent (in its individual capacity)

on such day on such transactions as determined by the Administrative Agent.




 




9





























 




“Fee Letter”

shall mean the Amended and Restated Senior Credit Facilities Fee Letter from

CSFB to the Borrower dated September 20, 2001.




 




“FERC”

shall mean the Federal Energy Regulatory Commission.




 




“Financing

Lease” shall mean any lease of property, real or personal, the obligations

of the lessee in respect of which are required in accordance with GAAP to be

capitalized on a balance sheet of the lessee.




 




“Funded Debt”

shall mean, as of any date of determination, the sum of all Indebtedness of the

Borrower and each of its Consolidated Subsidiaries (without duplication) other

than (i) Indebtedness of the type described in clause (e) of the definition

thereof and (ii) Non-Recourse Debt.




 




“GAAP”

shall mean generally accepted accounting principles in the United States of

America as in effect from time to time consistent with those utilized in

preparing the audited financial statements referred to in Section 3.1; provided

that in the event that any change in accounting principles required by the

promulgation of any rule, regulation, pronouncement or opinion by the Financial

Accounting Standards Board of the American Institute of Certified Public

Accountants (or successor thereto or any agency with similar functions) results

in a change in the calculation of any of the financial covenants hereunder, the

Required Lenders and the Borrower will in good faith enter into negotiations in

order to reevaluate such financial covenants in light of such change; and provided,

further, that this provision shall not operate as a waiver of any right,

remedy, power or privilege available to any Lender under any provision of any

Loan Document or pursuant to any applicable law.




 




“Government

Acts” shall have the meaning ascribed thereto in Section 2.20(h).




 




“Governmental

Authority” shall mean any national government (United States or foreign),

any state or other political subdivision thereof, any entity exercising

executive, legislative, judicial, regulatory or administrative functions of or

pertaining to government and any agency, authority, instrumentality, or

regulatory body of any thereof.




 




“Granting

Lender” shall have the meaning ascribed thereto in Section 9.6(f).




 




“Guarantee

Obligation” shall mean as to any Person (the “guaranteeing person”),

any obligation of the guaranteeing person (including, without limitation, any

reimbursement, counter-indemnity or similar obligation), guaranteeing or in

effect guaranteeing any Indebtedness, lease, dividend or other similar

obligation (the “primary obligation”) of any other third Person (the “primary

obligor”) in any manner, whether directly or indirectly, including, without

limitation, any obligation of the guaranteeing person, whether or not

contingent, (i) to purchase any such primary obligation or any property

constituting direct or indirect security




 




10





























 




therefor, (ii) to advance or supply funds (x) for the purchase or

payment of any such primary obligation or (y) to maintain working capital or

equity capital of the primary obligor or otherwise to maintain the net worth,

liquidity or solvency of the primary obligor, (iii) to purchase property,

securities or services primarily for the purpose of assuring the owner of any

such primary obligation of the ability of the primary obligor to make payment of

such primary obligation or (iv) otherwise to assure or hold harmless the owner

of any such primary obligation against loss in respect thereof; provided

that the term Guarantee Obligation shall not include endorsements of

instruments for deposit or collection in the ordinary course of business.  The amount of any Guarantee Obligation of

any guaranteeing person as of any date of determination shall be deemed to be

the lower of (a) an amount equal to the stated or determinable amount of the

primary obligation in respect of which such Guarantee Obligation is made and

(b) the maximum amount for which such guaranteeing person may be liable

pursuant to the terms of the instrument embodying such Guarantee Obligation,

unless such primary obligation and the maximum amount for which such

guaranteeing person may be liable are not stated or determinable, in which case

the amount of such Guarantee Obligation shall be such guaranteeing person’s

maximum reasonably anticipated liability in respect thereof as determined by the

Borrower in good faith.




 




“Hedging

Agreements” shall mean (a) any interest rate protection agreement, interest

rate future, interest rate option, interest rate swap, interest rate cap or

other interest rate hedge or arrangement under which the Borrower is a party or

a beneficiary and (b) any other agreement or arrangement designed to limit or

eliminate the risk or exposure of the Borrower to fluctuations in currency

exchange rates.




 




“Indebtedness”

of any Person at any date shall mean, without duplication, (a) Debt for

Borrowed Money of such Person, (b) all indebtedness of such Person for the

deferred purchase price of property or services (other than current trade

liabilities incurred in the ordinary course of business and payable in

accordance with customary practices), (c) all outstanding reimbursement

obligations of such Person in respect of outstanding letters of credit,

acceptances and similar obligations issued or created for the account of such

Person, (d) all liabilities secured by any Lien on any property owned by such

Person even though such Person has not assumed or otherwise become liable for

the payment thereof, (e) liabilities arising under Hedging Agreements

(other than interest rate caps) of such Person and (f) all Guarantee Obligations

of such Person.




 




“Indenture”

shall mean the General Mortgage Indenture and Deed of Trust dated as of August

1, 1993 between the Borrower and The Chase Manhattan Bank, as trustee.




 




“Index Debt”

shall mean the senior, unsecured, long-term Debt for Borrowed Money of the

Borrower that is not guaranteed by any other Person or subject to any other

credit enhancement.




 




11





























 




“Insolvency”

shall mean with respect to any Multiemployer Plan, the condition that such plan

is insolvent within the meaning of Section 4245 of ERISA.




 




“insolvent”

shall mean pertaining to a condition of Insolvency.




 




“Intellectual

Property” shall have the meaning set ascribed thereto in Section 3.10.




 




“Interest

Payment Date” shall mean (a) as to any Alternate Base Rate Loan, the last

Business Day of each March, June, September and December to occur while such

Loan is outstanding, (b) as to any Eurodollar Loan having an Interest Period of

three months or less, the last day of such Interest Period, and (c) as to any

Eurodollar Loan having an Interest Period longer than three months, each day

which is three months, or a whole multiple thereof, after the first day of such

Interest Period and the last day of such Interest Period.




 




“Interest

Period” with respect to any Eurodollar Loan shall mean:




 




(a)           initially, the period commencing on

the borrowing or conversion date, as the case may be, with respect to such

Eurodollar Loan and ending one, two, three or six months thereafter, as

selected by the Borrower in its Notice of Borrowing or Notice of Interest Rate

Conversion, as the case may be, given with respect thereto; and




 




(b)           thereafter, each period commencing on

the last day of the next preceding Interest Period applicable to such

Eurodollar Loan and ending one, two, three or six months thereafter, as

selected by the Borrower by irrevocable notice to the Administrative Agent not

less than three Business Days prior to the last day of the then current

Interest Period with respect thereto;




 




provided

that, the foregoing provisions relating to Interest Periods are subject to the

following:




 




(i)            if any Interest Period pertaining to

a Eurodollar Loan would otherwise end on a day that is not a Business Day, such

Interest Period shall be extended to the next succeeding Business Day (and,

with respect to payments of principal and interest thereon, shall be payable at

the then applicable rate during such extension) unless the result of such

extension would be to carry such Interest Period into another calendar month in

which event such Interest Period shall end on the immediately preceding

Business Day;




 




(ii)           no Interest Period with respect to a

Revolving Credit Loan shall be selected which would extend beyond the

Termination Date;




 




(iii)          no Interest Period with respect to a Term

Loan shall be selected which would extend beyond the Termination Date;




 




12





























 




(iv)          any Interest Period pertaining to a

Eurodollar Loan that begins on the last Business Day of a calendar month (or on

a day for which there is no numerically corresponding day in the calendar month

at the end of such Interest Period) shall end on the last Business Day of a

calendar month; and




 




(v)           the Borrower shall select Interest

Periods so as not to require a payment or prepayment of any Eurodollar Loan

during an Interest Period for such Loan.




 




“ISO” shall

mean any “Independent System Operator” or similar entity approved by FERC to

manage the transmission system owned by the Borrower.




 




“Issuing Lender”

shall mean CSFB.




 




“Lender”

shall have the meaning ascribed thereto in the heading hereto.




 




“Letter of

Credit” shall mean any standby letter of credit issued by the Issuing

Lender for the account of the Borrower in accordance with the terms of Section

2.3(c) hereof.




 




“Letter of Credit

Fee” shall have the meaning assigned to such term in Section 2.4(b).




 




“Lien”

shall mean any mortgage, pledge, hypothecation, assignment, deposit

arrangement, encumbrance, lien (statutory or other), charge or other security

interest or any preference, priority or other security agreement or

preferential arrangement of any kind or nature whatsoever (including, without

limitation, any conditional sale or other title retention agreement and any

Financing Lease having substantially the same economic effect as any of the

foregoing and the filing of any financing statement under the Uniform

Commercial Code or comparable law of any jurisdiction, other than any such

filing in connection with any true lease or operating lease).




 




“Loan Documents”

shall mean collectively, this Agreement, the Collateral Documents, the LOC

Documents, the Notes, the Fee Letter, the Syndication Fee Letter and each other

agreement, instrument or certificate issued, executed and delivered to the

Administrative Agent, the Collateral Agent, the Lenders or the Issuing Lender

hereunder or thereunder or pursuant hereto or thereto (in each case as the same

may be amended, restated, supplemented, extended, renewed or replaced from time

to time), and “Loan Document” means any one of them.




 




“Loans”

shall mean the loans made by the Lenders, including Swingline Loans made by the

Swingline Lender, to the Borrower pursuant to this Agreement.




 




“LOC Committed

Amount” shall have the meaning assigned to such term in Section 2.1(c).




 




13





























 




“LOC Documents”

shall mean, with respect to any Letter of Credit, such Letter of Credit, any

amendments thereto, any documents delivered in connection therewith, any

application therefor, and any agreements, instruments, guarantees or other

documents (whether general in application or applicable only to such Letter of

Credit) governing or providing for (i) the rights and obligations of the

parties concerned or at risk or (ii) any collateral security for such

obligation.




 




“LOC Obligations”

shall mean, at any time, the sum of (i) the maximum amount which is, or at any

time thereafter may become, available to be drawn under the Letters of Credit

then outstanding, assuming compliance with all requirements for drawings

referred to in such Letters of Credit plus (ii) the aggregate amount of

all drawings under the Letters of Credit honored by the Issuing Lender but not

theretofore reimbursed.




 




“Material

Adverse Effect” shall mean (a) a material adverse effect on the business,

operations, property, condition (financial or otherwise) or prospects of the

Borrower and its Consolidated Subsidiaries (taken as a whole), (b) any material

adverse effect on the validity or enforceability of this Agreement, any of the

Notes or any of the other Loan Documents, or the rights or remedies of the

Administrative Agent, the Collateral Agent, the Issuing Lender, the Swingline

Lender or the Lenders hereunder or thereunder or (c) with respect to any

determination of Material Adverse Effect on or prior to the Closing Date, any

material adverse effect on the ability of the Borrower, MPC, the Company or the

Seller to consummate the Transactions.




 




“Mandatory

Redeemable Stock” shall mean, with respect to any Person, any share of such

Person’s Capital Stock, to the extent that it is (a) redeemable, payable or

required to be purchased or otherwise retired or extinguished, or convertible

into any Indebtedness or other liability, obligation, covenant or duty of or

binding upon, or any term or condition to be observed by or binding upon such

Person or any of its assets, (i) at a fixed or determinable date, whether by

operation of a sinking fund or otherwise, (ii) at the option of any other

Person or (iii) upon the occurrence of a condition not solely within the

control of such Person such as a redemption required to be made utilizing

future earnings, or (b) convertible into Capital Stock which has the

features set forth in clause (a).




 




“Material

Subsidiary” shall mean, as at any time of determination, (a) each present

or future Subsidiary of the Borrower other than any Subsidiary which as at the

end of the fiscal quarter immediately preceding such time of determination,

shall have a net worth (calculated as the stockholder’s equity of such

Subsidiary disregarding any liabilities of such Subsidiary to an Affiliate)

equal to or less than 10% of the Net Worth of the Borrower and its Consolidated

Subsidiaries as at the end of such fiscal quarter, or net income equal to or

less than 10% of the Net Income of the Borrower and its Consolidated

Subsidiaries for the four fiscal quarter period ending at the end of such

fiscal quarter and (b) in any event, the Company.




 




14





























 




“Materials of

Environmental Concern” shall mean any gasoline or petroleum (including

crude oil or any fraction thereof) or petroleum products or any other

pollutant, contaminant, hazardous substance, hazardous waste, special waste,

toxic substance, radioactive material, or other compound, element, material or

substance in any form whatsoever (including products) regulated, restricted or

addressed by or under any Environmental Law, including, without limitation,

asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.




 




“Moody’s”

shall mean Moody’s Investors Service, Inc.




 




“MPC” shall

have the meaning ascribed thereto in the Preliminary Statement hereof.




 




“MPC

Restructuring” shall mean the Restructuring as such term is defined in the

Acquisition Agreement.




 




“Multiemployer

Plan” shall mean a plan which is a “multiemployer plan” as defined in

Section 3(37) or 4001(a)(3) of ERISA.




 




“Net Cash

Proceeds” shall mean, with respect to any Reduction Event, an amount equal

to the cash proceeds received by the Borrower or any of its Subsidiaries from

or in respect of such Reduction Event (including any cash received by way of

deferred payment pursuant to a promissory note, receivable or otherwise, but

only as and when received), less (a) any investment banking and underwriting

fees and any other fees and expenses reasonably incurred by such Person in

respect of such Reduction Event, and (b) if such Reduction Event is a

disposition of assets, (i) the amount of any Debt for Borrowed Money secured by

a Lien on any asset disposed of in such Reduction Event and discharged from the

proceeds thereof and (ii) any taxes actually paid or to be payable by such

Person (as estimated by a senior financial or accounting officer of the

Borrower, giving effect to the overall tax position of the Borrower) in respect

of such Reduction Event; provided that if the cash proceeds of such

Reduction Event are received by a Subsidiary that is not a Wholly-Owned

Subsidiary, Net Cash Proceeds shall include only the portion thereof

proportionately equivalent to the Borrower’s direct and indirect interest in

such Subsidiary.  The Net Cash Proceeds

of Debt Incurrences in respect of a revolving credit facility shall be deemed

to be the aggregate amount of the commitments thereunder, used or unused (but

shall not include any commercial paper issued in connection with, or any

letters of credit issued under, such facility).




 




“Net Income”

for any period shall mean, net income (or deficit) of the Borrower and its

Consolidated Subsidiaries for such period determined on a consolidated basis in

accordance with GAAP.




 




“Net Worth”

shall mean for any date the sum of shareholders’ equity and preferred stock,

preference stock and preferred securities of the Borrower and its




 




15





























 




Consolidated Subsidiaries on such date, in each case as described in

the consolidated financial statements of the Borrower.




 




“Non-Excluded

Taxes” shall have the meaning ascribed thereto in Section 2.15.




 




“Non-Recourse

Debt” shall mean any Indebtedness as to which neither the Borrower nor the

Company has any direct or indirect liability whether as primary obligor,

guarantor, surety, provider of collateral security or through any other right

or arrangement of any nature (including any election by the holder of such

indebtedness) providing direct or indirect assurance of payment or performance

of any such obligations in whole or in part (other than direct or indirect

liability which by its terms may be payable solely in Capital Stock (other than

Mandatory Redeemable Stock) of the Borrower).




 




“NorthWestern

Public Service” shall mean the regulated transmission and distribution

businesses conducted by the Borrower, historically reported under the headings

titled “Electric” and “Natural Gas” on the SEC Reports of the Borrower filed

annually with the SEC.




 




“Note” shall

mean, as applicable, a Revolving Credit Note, a Term Note or a QFL Note.




 




“Notice of

Borrowing” shall mean a notice given by the Borrower pursuant to Section

2.3(a), (b) or (d).




 




“Notice of

Interest Rate Conversion” shall have the meaning ascribed thereto in Section

2.7.




 




“NW

Restructuring” shall mean the reorganization, if any, of the corporate

structure of the Borrower and its Subsidiaries (including, without limitation,

the re-incorporation of the Borrower into a new jurisdiction and the creation

of a limited purpose holding company parent of the Borrower) in connection with

(or as a result of) the Acquisition.




 




“Obligations”

shall mean the unpaid principal of and interest on (including, without

limitation, interest accruing after the maturity of the Loans and interest

accruing after the filing of any petition in bankruptcy, or the commencement of

any insolvency, reorganization or like proceeding, relating to the Borrower or

any Subsidiary, as applicable, whether or not a claim for post-filing or post-petition

interest is allowed in such proceeding and whether the Administrative Agent,

for the benefit of the Lenders, is oversecured or undersecured with respect to

such Loans) the Notes and all other obligations and liabilities of the Borrower

to the Administrative Agent and the Lenders, whether direct or indirect,

absolute or contingent, due or to become due, now existing or hereafter

incurred, which may arise under, out of, or in connection with, this Agreement,

the Notes, the other Loan Documents or any other document made, delivered or

given in connection therewith or herewith, whether on account of




 




16





























 




principal, interest, fees, indemnities, costs, expenses (including,

without limitation, all fees and disbursements of counsel to the Administrative

Agent or the Lenders that are required to be paid by the Borrower pursuant to

the terms of this Agreement or any other Loan Document) or otherwise.




 




“Participant”

shall have the meaning ascribed thereto in Section 9.6(b).




 




“PBGC”

shall mean the Pension Benefit Guaranty Corporation established pursuant to

Subtitle A of Title IV of ERISA or any successor thereto.




 




“Pension Plan”

shall mean any single-employer plan, as defined in Section 4001(a)(15) of

ERISA, which the Borrower, any Subsidiary or any Commonly Controlled Entity

maintains, administers, contributes to or is required to contribute to, or

under which the Borrower, any Subsidiary or any Commonly Controlled Entity has

any liability.




 




“Permitted

Liens” shall mean




 




(a)                                  Liens

for taxes, assessments or governmental charges or levies or Liens for taxes,

assessments, governmental charges or levies not yet due or which are being

contested in good faith by appropriate proceedings; provided that

adequate reserves with respect thereto are maintained on the books of the

Borrower or its Consolidated Subsidiaries, as the case may be, in conformity

with GAAP;




 




(b)                                 statutory

Liens of carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or

other similar Liens arising in the ordinary course of business which are not

overdue for a period of more than 60 days or which are being contested in good

faith by appropriate proceedings;




 




(c)                                  pledges

or deposits in connection with workers’ compensation, unemployment insurance

and other social security legislation;




 




(d)                                 deposits

securing liability to insurance carriers under insurance or self-insurance

arrangements, and deposits to secure true leases in the ordinary course;




 




(e)                                  easements,

rights-of-way, restrictions and other similar encumbrances incurred in the

ordinary course of business and landlords’ Liens which, in the aggregate, do

not in any case materially detract from the value of the property subject

thereto or materially interfere with the ordinary conduct of the business of

the Borrower;




 




(f)                                    any

attachment or judgment Lien not constituting an Event of Default under Section

7.1(h);




 




17





























 




(g)                                 Liens

solely on assets of a Subsidiary (other than the Company) incurring Indebtedness,

which Liens secure such Indebtedness;




 




(h)                                 Liens

under the Indenture, as such Indenture may be amended or supplemented from time

to time in accordance with the terms hereof;




 




(i)                                     Liens

created in connection with the acquisition by the Borrower or any Consolidated

Subsidiary of assets and the continuation of such Liens in connection with any

refinancing of the Indebtedness secured by such Liens; provided that

such Liens are limited to the assets so acquired;




 




(j)                                     Liens

on the assets or other rights to receive income of any Person that exist at the

time such Person becomes a Consolidated Subsidiary (or with respect to assets

of the Company, upon the transfer of such assets to the Borrower, any Liens of

the Borrower, as successor to the Company, on such assets) and the continuation

of such Liens in connection with any refinancing or restructuring of the

obligations secured by such Liens;




 




(k)                                  any

Lien vested in any licensor or permitter for obligations or acts to be

performed, the performance of which obligations or acts is required under

licenses or permits, so long as the performance of such obligations or acts is

not delinquent or is being contested in good faith and by appropriate

proceedings;




 




(l)                                     any

controls, restrictions, obligations, duties or other burdens imposed by any

federal, state, municipal or other law, or by any rule, regulation or order of

any Governmental Authority, upon any property of the Borrower or the operation

or use thereof or upon the Borrower with respect to any of its property or the

operation or use thereof or with respect to any franchise, grant, license,

permit or public purpose requirement, or any rights reserved to or otherwise

vested in any Governmental Authority to impose any such controls, restrictions,

obligations, duties or other burdens;




 




(m)                               Liens

granted on air or water pollution control, sewage or solid waste disposal, or

other similar facilities of the Borrower in connection with the issuance of

pollution control revenue bonds, in connection with financing the cost of, or

the construction or acquisition of, such facilities;




 




(n)                                 any

right which any Governmental Authority may have by virtue of any franchise,

license, contract or statute to purchase, or designate a purchaser of or order

the sale of, any property of the Borrower upon payment of cash or reasonable

compensation




 




18





























 




therefor or to terminate any franchise, license or

other rights or to regulate the property and business of the Borrower;




 




(o)                                 party-wall

agreements and agreements, in each case existing on the date hereof, for and

obligations relating to the joint or common use of property owned solely by the

Borrower or owned by the Borrower in common or jointly with one or more

parties;




 




(p)                                 liens

existing on the date hereof securing indebtedness incurred by a Person, other

than the Borrower which indebtedness has been neither assumed nor guaranteed by

the Borrower nor on which it customarily pays interest, existing on property

which the Borrower owns jointly or in common with such Person or such Person

and others, if there is a bar against partition of such property which would

preclude the sale of such property by such other Person or the holder of such

lien without the consent of the Borrower;




 




(q)                                 liens

on property of the Borrower and/or the Company securing Indebtedness or other

obligations of the Borrower or the Company, provided that the aggregate

principal amount of such Indebtedness of the Borrower and the Company taken as

a whole shall not exceed $5,000,000 at any one time outstanding; and




 




(r)                                    Liens

existing on the date hereof.




 




“Person”

shall mean an individual, partnership, corporation, limited liability company,

business trust, joint stock company, trust, unincorporated association, joint

venture, Governmental Authority, ISO or other entity of whatever nature.




 




“Plan”

shall mean at a particular time, any employee benefit plan which is defined in

Section 3(2 of ERISA and in respect of which the Borrower or any Subsidiary is,

an “employer” as defined in Section 3(5) of ERISA.




 




“Pledge

Agreement” shall mean the pledge agreement substantially in the form of Exhibit

F attached hereto between the Borrower and the Collateral Agent for the

benefit of the Secured Parties (as therein defined).




 




“Pricing Grid”

shall mean the pricing grid attached hereto as Annex A.




 




“Properties”

shall have the meaning ascribed thereto in Section 3.17(a).




 




“QFL Note”

shall have the meaning ascribed thereto in Section 2.15.




 




“Qualified

Foreign Lender” shall have the meaning ascribed thereto in Section 2.15.




 




19





























 




“Reduction

Event” shall mean any (a) Asset Sale, (b) Debt Incurrence or (c) Equity

Issuance.




 




“Refinancing”

shall mean the refinancing of existing Indebtedness of the Borrower and its

Subsidiaries, if any, required to be repaid by the terms thereof as a result of

the Acquisition.




 




“Register”

shall have the meaning ascribed thereto in Section 9.6(d).




 




“Regulation D,

T, U or X” shall mean Regulation D, T, U or X, respectively, of the Board

of Governors of the Federal Reserve System as in effect from time to time, or

any successor regulation.




 




“Release”

shall mean any release, pumping, pouring, emptying, injecting, escaping,

leaching, migrating, dumping, seepage, spill, leak, flow, discharge, disposal

or emission.




 




“Reorganization”

shall mean with respect to any Multiemployer Plan, the condition that such plan

is in reorganization within the meaning of Section 4241 of ERISA.




 




“Replaced Note”

shall have the meaning ascribed thereto in Section 2.15.




 




“Replacement

Lender” shall have the meaning ascribed thereto in Section 2.18.




 




“Reportable

Event” shall mean any of the events set forth in Section 4043(c) of ERISA

other than those events for which the notice requirement has been waived under

applicable regulations.




 




“Required

Lenders” shall mean, at any time, Lenders having Term Commitments (or after

the Closing Date, Term Loans) and Revolving Credit Commitments (or after the

Termination Date, Revolving Credit Loans and Revolving Credit Commitment

Percentages of Swingline Loans and LOC Obligations) representing 51% or more of

the aggregate of all Term Commitments (or after the Closing Date, Term Loans)

and Revolving Credit Commitments (or after the Termination Date, Revolving

Credit Loans, Swingline Loans and LOC Obligations) in each case outstanding at

such time.




 




“Requirement of

Law” as to any Person shall mean the articles of organization and by-laws

or other organizational or governing documents of such Person, and any law,

treaty, rule or regulation or determination of an arbitrator or a court or

other Governmental Authority (including, without limitation, the Public Utility

Holding Company Act of 1935, as amended, any of the foregoing relating to

employee health and safety or public utilities and any Environmental Law), in

each case, applicable to or binding upon such Person or any of its property or

to which such Person or any of its property is subject.




 




20





























 




“Responsible

Officer” shall mean, with respect to a Person, the chairman of the board of

directors, the chief executive officer or the president of such Person or, with

respect to financial matters, the chief financial officer of such Person, or

any other officer of such Person designated as a Responsible Officer by any of

the foregoing.




 




“Restricted

Payment” shall have the meaning ascribed thereto in Section 6.9.




 




“Revolving

Credit Commitment” shall mean, (a) in the case of each Lender that is a

Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule

I as such Lender’s “Revolving Credit Commitment” and (b) in the case of any

Lender that becomes a Lender after the date hereof, the amount specified as

such Lender’s “Revolving Credit Commitment” in the Assignment and Assumption

Agreement pursuant to which such Lender assumed a portion of the Total

Revolving Credit Commitment, in each case as the same may be changed from time

to time pursuant to the terms hereof.  A

Lender’s Revolving Credit Commitment shall also include the commitment of such

Lender to participate in Letters of Credit and Swingline Loans hereunder as set

forth in Sections 2.20 and 2.21 hereof. 

The initial aggregate amount of the Revolving Credit Commitments is

$280,000,000.




 




“Revolving Credit

Commitment Percentage” shall mean, for each Lender having a Revolving

Credit Commitment, a fraction (expressed as a percentage) the numerator of

which is the Revolving Credit Commitment of such Lender at such time and the

denominator of which is the Total Revolving Credit Commitment at such

time.  The initial Revolving Credit

Commitment Percentage for each Lender is set forth on Schedule I.




 




“Revolving

Credit Loans” shall have the meaning ascribed thereto in Section 2.1(b).




 




“Revolving

Credit Note” shall have the meaning ascribed thereto in Section 2.2(a).




 




“Revolving

Credit Obligations” shall mean, collectively, the Revolving Credit Loans,

the Swingline Loans and the LOC Obligations.




 




“SEC” shall

mean the Securities and Exchange Commission.




 




“SEC Reports”

shall mean the reports filed by the Borrower with the SEC on Form 10-K, Form

10-Q or Form 8-K or any successor Form.




 




“Secured

Parties” shall have the meaning ascribed thereto in the Pledge Agreement.




 




“Seller”

shall have the meaning ascribed thereto in the Preliminary Statements hereof.




 




21





























 




“SPC”

shall have the meaning ascribed thereto in Section 9.6(f).




 




“Special

Purpose Subsidiary” shall mean a direct or indirect Subsidiary of the

Borrower, formed solely for the purpose of acquiring and owning certain assets

and issuing Indebtedness which is secured solely by such assets (or the assets

of one or more other Special Purpose Subsidiaries) and as to which the Borrower

and each other Subsidiary (other than any Special Purpose Subsidiary) has no

Guarantee Obligation or other liability or obligation to contribute additional

equity or for which the Borrower or any other Subsidiary (other than a Special

Purpose Subsidiary) has general partner liability or other derivative liability

by operation of law or contract.  The

term “Special Purpose Subsidiary” shall also include any Subsidiary whose

assets consist solely of equity interests in another Special Purpose Subsidiary

and, other than having general partner liability, otherwise meets the

requirements of the preceding sentence.




 




“Standard &

Poor’s” shall mean Standard & Poor’s Rating Group, a division of The

McGraw-Hill Companies, Inc.




 




“Subsidiary”

shall mean a corporation, company, partnership or other entity of which shares

of stock or other ownership interests having ordinary voting power (other than

stock or such other ownership interests having such power only by reason of the

occurrence of a contingency) to elect a majority of the board of directors or other

managers of such corporation, company, partnership or other entity are at the

time owned, or the management of which is otherwise controlled, directly or

indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise expressly stated herein all

references to any Subsidiary are to direct or indirect subsidiaries of the

Borrower.  Any corporation, company,

partnership or other entity which becomes a Subsidiary of the Borrower upon

consummation of the Acquisition shall, for all purposes hereof, be deemed to be

a Subsidiary of the Borrower from and after the Closing Date.




 




“Swingline

Commitment” shall mean the commitment of the Swingline Lender to make

Swingline Loans in an aggregate principal amount at any time outstanding up to

the Swingline Committed Amount, as such amount may be reduced from time to time

in accordance with the provisions hereof.




 




“Swingline

Committed Amount” shall mean the amount of the Swingline Lender’s

Commitment as specified in Section 2.1(d).




 




“Swingline Lender” shall mean CSFB.




 




“Swingline Loan” means a swingline revolving credit loan made by

the Swingline Lender pursuant to the provisions of Section 2.1(d).




 




“Syndication

Fee Letter” shall mean the Syndication Fee Letter from CSFB to the Borrower

dated the date hereof.




 




22





























 




“Tangible Net

Worth” shall mean the excess of (a) the assets of the Borrower and its

Consolidated Subsidiaries (excluding intercompany items) which, in accordance

with GAAP, are tangible assets, after deducting adequate reserves in each case

where, in accordance with GAAP, a reserve is proper, over (b) all liabilities

of the Borrower and its Consolidated Subsidiaries (excluding intercompany items

as determined in accordance with GAAP); provided that in no event shall

there be included as tangible assets patents, trademarks, trade names,

copyrights, licenses, goodwill, deferred charges (other than assets classified

as deferred charges under FAS 71) or treasury stock or any securities issued by

or any liabilities of the Borrower or any Subsidiary.




 




“Term Loans”

shall have the meaning ascribed thereto in Section 2.1(a).




 




“Term Loan

Commitment” shall mean, (a) in the case of each Lender that is a Lender on

the date hereof, the amount set forth opposite such Lender’s name on Schedule

I as such Lender’s “Term Loan Commitment” and (b) in the case of any Lender

that becomes a Lender after the date hereof, the amount specified as such

Lender’s “Term Loan Commitment” in the Assignment and Assumption Agreement

pursuant to which such Lender assumed a portion of the Total Term Loan

Commitment, in each case as the same may be changed from time to time pursuant

to the terms hereof.  The initial

aggregate amount of the Term Loan Commitments is $720,000,000.




 




“Term Loan

Commitment Percentage” shall mean, for each Lender having a Term Loan

Commitment, a fraction (expressed as a percentage) the numerator of which is

the Term Loan Commitment of such Lender at such time and the denominator of

which is the Total Term Loan Commitment at such time.  The initial Term Loan Commitment Percentage for each Lender is

set forth on Schedule I.




 




“Term Note”

shall have the meaning ascribed thereto in Section 2.2(b).




 




“Termination

Date” shall mean a date that is 364 days after the Closing Date, or, if

such date is not a Business Day, the immediately preceding Business Day.




 




“Total Capital”

shall mean on any date (a) Funded Debt on such date plus (b) the sum of

(i) stockholders’ equity and (ii) preferred stock, preference stock and preferred

securities of the Borrower and its Consolidated Subsidiaries on such date, in

each case as described in the consolidated financial statements of the

Borrower.




 




“Total

Revolving Credit Commitment” shall mean the sum of the Revolving Credit

Commitments of all Lenders.




 




“Total Term

Loan Commitment” shall mean the sum of the Term Loan Commitments of all

Lenders.




 




23





























 




“Transactions”

shall mean, collectively, (a) the Acquisition (and the other transactions contemplated

by the Acquisition Agreement), (b) the MPC Restructuring, (c) the NW

Restructuring, if any, (d) any refinancing or replacement of Indebtedness by

the Borrower or its Subsidiaries in connection with the foregoing, (e)

borrowings hereunder and (f) any other transactions related or entered into in

connection with any of the foregoing.




 




“Transferee”

shall have the meaning ascribed thereto in Section 9.6(f).




 




“Type”

shall mean as to any Loan, its nature as a Revolving Credit Loan, Swingline

Loan or a Term Loan, or as an Alternate Base Rate Loan or a Eurodollar Loan, or

both, as the context may require.




 




“UCP” shall

have the meaning ascribed thereto in Section 2.20(g).




 




“Utility

Business” shall mean the combined business and operations of NorthWestern

Public Service and the Company, whether conducted as a Wholly-Owned Subsidiary

or as a division of the Borrower.




 




“Utility

Business EBITDA” shall mean, for any period for the Utility Business, the

sum of (i) the operating income of the Utility Business for such period plus,

without duplication and to the extent reflected as a charge in the statement of

operating income of the Utility Business for such period, (ii) depreciation and

amortization, in each case on a consolidated basis determined in accordance with

GAAP, provided, however, with respect to the first Fiscal Quarter

ended immediately after the Closing Date, the Utility Business EBITDA shall be

subject to adjustment on a pro forma basis.




 




“Wholly-Owned Subsidiary” of any Person shall mean any Subsidiary 100% of whose Capital Stock is at

the time owned by such Person directly or indirectly through other Wholly Owned

Subsidiaries (other than qualifying directors’ shares).




 




1.2  Other Definitional Provisions  (a) 

Unless otherwise specified therein, all terms defined in this Agreement

shall have their respective defined meanings when used in the Notes or any

certificate or other document made or delivered pursuant hereto.




 




(b)           As used herein, in the Notes and in

any certificate or other document made or delivered pursuant hereto, accounting

terms relating to the Borrower or any Subsidiary not defined in Section 1.1

and accounting terms partly defined in Section 1.1, to the extent not

defined, shall have the respective meanings given to them under GAAP.




 




(c)           The words “hereof,” “herein” and

“hereunder” and words of similar import when used in this Agreement shall refer

to this Agreement as a whole and not to any particular provision of this

Agreement, and Article, Section, Schedule and Exhibit references are to this

Agreement unless otherwise specified.




 




24





























 




(d)           The meanings given to terms defined

herein shall be equally applicable to both the singular and plural forms of

such terms.




 




(e)           The words “include,” “includes” and

“including” shall be deemed to be followed by the phrase “without

limitation”.  The word “or” shall not be

exclusive.  The word “will” shall be

construed to have the same meaning and effect as the word “shall”.




 




(f)            Unless the context requires

otherwise (i) any definition of or reference to any agreement, instrument or

other document herein shall be construed as referring to such agreement,

instrument or other document as from time to time amended, supplemented or

otherwise modified (subject to any restrictions on such amendments, supplements

or modifications set forth herein), (ii) any reference herein to any Person

shall be construed to include such Person’s successors and assigns, and (iii)

the words “asset” and “property” shall be construed to have the same meaning

and effect and to refer to any and all tangible and intangible assets and

properties, including cash, securities, accounts and contract rights.




 




ARTICLE

2.  AMOUNT AND TERMS OF COMMITMENTS




 




2.1  Commitments  (a)  Term

Loans.  On the Closing Date, subject

to the terms and conditions hereof, each Lender having a Term Loan Commitment

severally agrees to make term loans (“Term Loans”) to the Borrower in an

aggregate principal amount not to exceed such Lender’s respective Term Loan Commitment,

which (i) may, at the option of the Borrower be incurred and maintained as, or

converted into Alternate Base Rate Loans or Eurodollar Loans; provided

that all Term Loans made by each Lender pursuant to the same Type of Loan

shall, at any one time, unless otherwise specifically provided herein, consist

entirely of Term Loans of the same Type, and (ii) may be repaid in accordance

with the provisions hereof, but once repaid, may not be reborrowed.  No Lender shall be permitted or required to

make any Term Loan if after giving effect thereto:




 




(x)            the aggregate outstanding principal

amount of Term Loans made by such Lender would exceed such Lender’s Term Loan

Commitment; or




 




(y)           the aggregate outstanding principal

amount of the Term Loans made by all the Lenders would exceed the Total Term

Loan Commitment.




 




(b)  Revolving Credit Loans.  Subject to the terms and conditions hereof,

each Lender having a Revolving Credit Commitment severally agrees to make

revolving credit loans (“Revolving Credit Loans”) to the Borrower from

time to time during the Availability Period in an aggregate principal amount at

any one time outstanding not to exceed such Lender’s Revolving Credit

Commitment, which (i) may, at the option of the Borrower be incurred and

maintained as, or converted into Alternate Base Rate Loans or Eurodollar Loans;

provided that all Revolving Credit Loans made by each Lender pursuant to

the same Type of Loan shall, at any one time, unless otherwise specifically

provided herein, consist entirely of Revolving Credit Loans of the same Type,

and (ii)




 




25





























 




may be repaid and

reborrowed in accordance with the provisions hereof.  No Lender shall be permitted or required to make any Revolving

Credit Loan if after giving effect thereto:




 




(x)            the aggregate

outstanding principal amount of Revolving Credit Loans made by such Lender

would exceed such Lender’s Revolving Credit Commitment; or




 




(y)           the sum of the

aggregate outstanding principal amount of the Revolving Credit Loans made by

all the Lenders plus the aggregate outstanding LOC Obligations plus

the aggregate outstanding principal amount of Swingline Loans would exceed the

Total Revolving Credit Commitment.




 




No Revolving Credit Loan shall be made as or converted into a

Eurodollar Loan after the day that is one month prior to the Termination Date.




 




(c)  Letters of Credit.  Subject to the terms and conditions hereof

and of the LOC Documents, if any, and such other terms and conditions which the

Issuing Lender may reasonably require, the Issuing Lender shall issue, and the

Lenders having Revolving Credit Commitments shall participate severally in,

such Letters of Credit as the Borrower may request from time to time during the

Availability Period, in form reasonably acceptable to the Issuing Lender, for

the purpose hereinafter set forth; provided, that (i) the aggregate

amount of LOC Obligations shall not exceed FIFTY MILLION DOLLARS ($50,000,000)

at any time, (the “LOC Committed Amount”), (ii) with regard to the

Lenders having Revolving Credit Commitments collectively, the aggregate

principal amount of Revolving Credit Obligations at any time shall not exceed

the Total Revolving Credit Commitment and (iii) with regard to each Lender

having a Revolving Credit Commitment individually, such Lenders’ Revolving

Commitment Percentage of Revolving Credit Obligations at any time shall not

exceed such Lenders’ Revolving Credit Commitment.  Letters of Credit issued hereunder shall have an expiry date not

more than 360 days from the date of issuance or extension, and may not extend

beyond the date five (5) Business Days prior to the Termination Date.




 




(d)  Swingline Loans.  Subject to the terms and conditions hereof,

the Swingline Lender agrees to make swingline loans (the “Swingline Loans”)

to the Borrower from time to time during the Availability Period; provided

that (i) the aggregate principal amount of Swingline Loans shall not

exceed TWENTY-FIVE MILLION DOLLARS ($25,000,000) (the “Swingline Committed

Amount”), (ii) with regard to the Lenders collectively, the aggregate

principal amount of Revolving Credit Obligations at any time shall not exceed

the Total Revolving Credit Commitment and (iii) with regard to each Lender

individually, such Lender’s Revolving Commitment Percentage of Revolving Credit

Obligations at any time shall not exceed such Lender’s Revolving Credit

Commitment.  Swingline Loans shall

consist of Alternate Base Rate Loans and may be repaid and reborrowed in

accordance with the provisions hereof. 

Each Swingline Loan advance shall be in a minimum principal amount of

$1,000,000 and integral multiples of $100,000 in excess thereof.




 




26





























 




2.2  Notes  (a) 

Any Lender may request that Loans made by such Lender shall be evidenced

by one or more promissory notes of the Borrower.  In such event, the Borrower shall prepare, execute and deliver

such promissory notes as set forth in clauses (b) and (c) below.




 




(b)  To the extent requested by

any Lender in accordance with clause (a) above, Revolving Credit Loans made by

such Lender shall be evidenced by one or more promissory notes of the Borrower,

each substantially in the form attached hereto Exhibit A-1, with

appropriate insertions as to payee, date and principal amount (a “Revolving

Credit Note”), payable to the order of such Lender and in a principal

amount equal to the initial Revolving Credit Commitment of such Lender.  Each Lender is hereby authorized to record

the date, Type and amount of each Loan made by it, each continuation thereof,

each conversion of all or a portion thereof to another Type, the date and

amount of each payment or prepayment of principal thereof and, in the case of

Eurodollar Loans, the length of each Interest Period with respect thereto, on

the schedule annexed to and constituting a part of its Revolving Credit Note,

and any such recordation shall constitute prima  facie evidence of

the accuracy of the information so recorded absent manifest error.  Each Revolving Note shall (i) be dated the

Closing Date, (ii) be stated to mature on the Termination Date and (iii)

provide for the payment of interest in accordance with Section 2.9.




 




(c)  To the extent requested by

any Lender in accordance with clause (a) above, Term Loans made by such Lender

shall be evidenced by one or more promissory notes of the Borrower, each

substantially in the form attached hereto Exhibit A-2, with appropriate

insertions as to payee, date and principal amount (a “Term Note”),

payable to the order of such Lender and in an aggregate principal amount equal

to the aggregate principal amount of Term Loans of such Lender then

outstanding.  Each Lender is hereby

authorized to record the date, Type and amount of each Loan made by it, each

continuation thereof, each conversion of all or a portion thereof to another

Type, the date and amount of each payment or prepayment of principal thereof

and, in the case of Eurodollar Loans, the length of each Interest Period with

respect thereto, on the schedule annexed to and constituting a part of its Term

Note, and any such recordation shall constitute prima  facie

evidence of the accuracy of the information so recorded absent manifest

error.  Each Note shall (i) be dated the

Closing Date, (ii) be stated to mature on the Termination Date and (iii)

provide for the payment of interest in accordance with Section 2.9.




 




2.3  Procedure for Borrowings  (a) 

The Borrower may borrow Term Loans on the Closing Date; provided

that the Borrower shall give the Administrative Agent an irrevocable notice

substantially in the form of Exhibit B-1 (which notice must be received

by the Administrative Agent prior to 10:00 a.m., New York City time, (i) three

Business Days prior to the requested Borrowing Date, if all or any part of the

requested Term Loans are to be Eurodollar Loans, or (ii) one Business Days

prior to the requested Borrowing Date, if none of the requested Loans are to be

Eurodollar Loans), specifying (1) that a Term Loan is requested, (2) the

aggregate amount to be borrowed, (3) the requested Borrowing Date, (4) whether

the borrowing is to be of Eurodollar Loans, Alternate Base Rate Loans or a

combination thereof, (5) if the borrowing is to be




 




27





























 




entirely or partly

of Eurodollar Loans, the amounts of such Eurodollar Loans and the lengths of

the initial Interest Periods therefor and (6) the number and the location of

the account to which the proceeds are to be disbursed.  Upon receipt of any such notice from the

Borrower, the Administrative Agent shall promptly notify each Lender

thereof.  Each Lender will make the

amount of its pro rata share of each borrowing available to the Administrative

Agent for the account of the Borrower at the office of the Administrative Agent

specified in Section 9.2 prior to 11:00 a.m., New York City time, on the

Borrowing Date requested by the Borrower in funds immediately available to the

Administrative Agent.  Such borrowing

will then be made available to the Borrower by the Administrative Agent in the

manner specified by the Borrower in such Notice of Borrowing in the aggregate

of the amounts made available to the Administrative Agent by the Lenders and in

like funds as received by the Administrative Agent.  If the Borrower fails to indicate the initial Interest Periods in

such notice, the Interest Period shall be one month.




 




(b)  The Borrower may borrow

Revolving Credit Loans during the Availability Period on any Business Day; provided

that the Borrower shall give the Administrative Agent an irrevocable notice

substantially in the form of Exhibit B-1 (which notice must be received

by the Administrative Agent prior to 10:00 a.m., New York City time, (i) three

Business Days prior to the requested Borrowing Date, if all or any part of the

requested Revolving Credit Loans are to be Eurodollar Loans, or (ii) one (1)

Business Days prior to the requested Borrowing Date, if none of the requested

Loans are to be Eurodollar Loans), specifying (1) that a Revolving Credit Loan

is requested, (2) the amount to be borrowed, (3) the requested Borrowing Date,

(4) whether the borrowing is to be of Eurodollar Loans, Alternate Base Rate

Loans or a combination thereof, (5) if the borrowing is to be entirely or

partly of Eurodollar Loans, the amounts of such Eurodollar Loans and the

lengths of the initial Interest Periods therefor and (6) the number and the

location of the account to which the proceeds are to be disbursed.  Each such borrowing shall be in an amount

equal to (x) in the case of Alternate Base Rate Loans, $5,000,000 or a whole

multiple of $1,000,000 in excess thereof (or, if the unused portion of the

Commitments is less than $5,000,000, such lesser amount) and (y) in the case of

Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess

thereof.  Upon receipt of any such

notice from the Borrower, the Administrative Agent shall promptly notify each

Lender thereof.  Each Lender will make

the amount of its pro rata share of each borrowing available to the

Administrative Agent for the account of the Borrower at the office of the

Administrative Agent specified in Section 9.2 prior to 11:00 a.m., New

York City time, on the Borrowing Date requested by the Borrower in funds

immediately available to the Administrative Agent.  Such borrowing will then be made available to the Borrower by the

Administrative Agent in the manner specified by the Borrower in such Notice of

Borrowing in the aggregate of the amounts made available to the Administrative

Agent by the Lenders and in like funds as received by the Administrative Agent.  If the Borrower fails to indicate the

initial Interest Periods in such notice, the Interest Period shall be one

month.




 




(c)  The Borrower may request

the issuance or extension of Letters of Credit during the Availability Period

on any Business Day; provided that the Borrower shall give the Issuing

Lender, with a copy to the Administrative Agent, an irrevocable




 




28





























 




notice

substantially in the form of Exhibit B-2 (a “Notice for Request”)

for a Letter of Credit (which notice must be received by the Administrative

Agent prior to 10:00 a.m., New York City time, three Business Days prior to the

date of the requested issuance or extension or such shorter period as may be

agreed to by the Issuing Lender).  Each

such Notice for Request shall specify, among other things, (i) that a Letter of

Credit is requested, (ii) the date of the requested issuance or extension,

(iii) the type, amount, expiry date and terms on which the Letter of Credit is

to be issued or extended, and (iv) the beneficiary.




 




(d)  The Borrower may borrow

Swingline Loans during the Availability Period on any Business Day; provided

that the Borrower shall give the Swingline Lender, with a copy to the

Administrative Agent, an irrevocable notice substantially in the form of Exhibit

B-3 (which notice must be received by the Administrative Agent prior to

10:00 a.m., New York City time, on the requested Borrowing Date), specifying

(i) that a Swingline Loan is requested, (ii) the amount to be borrowed and

(iii) the requested Borrowing Date.  The

Swingline Lender will make the amount of such Swingline Loan available to the

Borrower prior to 2:00 p.m., New York City time, on the Borrowing Date

requested by the Borrower in immediately available funds.




 




2.4  Fees.  (a)  Commitment

Fee.  The Borrower agrees to pay to

the Administrative Agent for the account of each Lender a commitment fee (each

a “Commitment Fee”), which shall accrue at the Applicable Margin with

respect to the Commitment Fee on the daily amount, if any, of the Revolving

Credit Commitment of such Lender in excess of the sum of the aggregate

principal amount of such Lender’s Revolving Credit Loans (and Swingline Loans)

then outstanding plus such Lender’s Revolving Credit Commitment

Percentage of the actual daily maximum amount available to be drawn under each

Letter of Credit then outstanding during the period from and including the

Closing Date to but excluding the date on which such Commitment

terminates.  Accrued Commitment Fees

shall be payable in arrears on the last Business Day of March, June, September

and December of each year and on the date on which the Revolving Credit

Commitment terminates, commencing on the first such date to occur after the

Closing Date.  All Commitment Fees shall

be computed on the basis of a 360-day year and shall be payable for the actual

number of days elapsed (including the first day but excluding the last

day).  For purposes of computation of

the Commitment Fee, Swingline Loans shall not be counted toward or considered

usage under the Revolving Credit Commitment of any Revolving Lender other than

the Swingline Lender.




 




(b)  Deferred Closing Fee.  The Borrower agrees to pay to the

Administrative Agent for the account of each Lender a deferred closing fee

(each a “Deferred Closing Fee”), which shall accrue at twenty-five one

hundredths of one percent (0.25%) per annum on the daily amount of the sum of

the Term Loan Commitment and the Revolving Credit Commitment of such Lender

then outstanding during the period from and including the date hereof to but

excluding the earlier of the Closing Date and the date on which such

Commitments terminate.  Accrued Deferred

Closing Fees shall be payable in arrears on the Closing Date (or, if earlier,

on the date on which the Commitments terminate).  All Deferred Closing Fees shall be computed on the basis of a




 




29





























 




year of 365 days

and shall be payable for the actual number of days elapsed (including the first

day but excluding the last day).




 




(c)  Letter of Credit Issuance

Fees.  In consideration of the

issuance of Letters of Credit hereunder, the Borrower promises to pay to the

Administrative Agent for the account of each Lender having a Revolving Credit

Commitment a fee (the “Letter of Credit Fee”) on such Lender’s Revolving

Credit Commitment Percentage of the actual daily maximum amount available to be

drawn under each outstanding Letter of Credit computed at a per annum rate for

each day from the date of issuance to the date of expiration (including the

first day but excluding the last day) equal to the Applicable Margin for

Revolving Credit Loans which are Eurodollar Loans.  The Letter of Credit Fee shall be payable in arrears on the last

Business Day of March, June, September and December of each year (or portion

thereof) beginning with the first such date to occur after the Closing Date and

on the Termination Date.




 




(d)  Issuing Lender’s Fees.  The Borrower agrees to pay to the Issuing

Lender, for its own account as Issuing Lender, such fees and expenses when due

as are separately agreed to between the Issuing Lender and the Borrower.




 




(e)  Fee Letters.  The Borrower agrees to pay to the

Administrative Agent, (i) for the account of CSFB or the Administrative Agent,

as applicable as set forth therein, concurrent with signing of this Agreement

(or as otherwise specified therein), the fees set forth in the Fee Letter and

(ii) for the account of each Co-Arranger or the Lenders, as applicable as set

forth therein, concurrent with signing of this Agreement (or as otherwise

specified therein), the fees set forth (or referred to) in the Syndication Fee

Letter.




 




(f)  Payment of Fees.  All fees payable hereunder shall be paid on

the dates due, in immediately available funds, to the Administrative Agent for

the benefit of the parties entitled thereto. 

Fees paid shall not be refundable under any circumstances.




 




2.5  Optional and Mandatory Termination or

Reduction. 

(a)  The Term Loan Commitments

shall terminate on the Closing Date (immediately after funding of the Term

Loans).  Unless previously terminated,

the aggregate amount of the Revolving Credit Commitments shall terminate on the

Termination Date.  Anything herein to

the contrary notwithstanding, the Term Loan Commitments and the Revolving

Credit Loan Commitments shall terminate on March 31, 2002 in the event that the

Closing Date has not occurred (and each of the conditions precedent set forth

in Section 4.1 has not been satisfied) on or prior to such date.




 




(b)  The Borrower shall have the

right, upon not less than three Business Days’ notice (if any Eurodollar Loans

are outstanding at such time) or two Business Days’ notice (otherwise) to the

Administrative Agent, to terminate the Term Loan Commitments or, from time to

time, to reduce the aggregate amount of the Term Loan Commitments.  Any such reduction shall be in an amount

equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and

shall reduce permanently the Term Loan Commitments then in effect.  The Administrative Agent agrees promptly to

notify the




 




30





























 




Lenders of any

notice of reduction or termination received by the Administrative Agent.  Each reduction of the Term Loan Commitments

shall be made ratably among the Lenders in accordance with their respective

Term Loan Commitments.




 




(c)  The Borrower shall have the

right, upon not less than three Business Days’ notice (if any Eurodollar Loans

are outstanding at such time) or two Business Days’ notice (otherwise) to the

Administrative Agent, (i) to terminate the Revolving Credit Commitments if no

Revolving Credit Obligations are then outstanding or (ii) from time to time, to

reduce the aggregate amount of the Revolving Credit Commitments in excess of

the sum of the aggregate principal amount of the Revolving Credit Obligations

then outstanding.  Any such reduction

shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in

excess thereof and shall reduce permanently the Revolving Credit Commitments then

in effect.  The Administrative Agent

agrees promptly to notify the Lenders of any notice of reduction or termination

received by the Administrative Agent. 

Each reduction of the Revolving Credit Commitments shall be made ratably

among the Lenders in accordance with their respective Revolving Credit

Commitments.




 




(d)  The principal amount of all

Term Loans, Revolving Credit Loans and Swingline Loans shall be due and payable

on the Termination Date.




 




2.6  Optional and Mandatory Prepayments  (a) 

Subject to Section 2.16, the Borrower may, at any time and from

time to time prepay the Loans, in whole or in part, without premium or penalty,

upon at least three Business Days’ irrevocable written notice (in the case of

Eurodollar Loans), or one Business Day’s irrevocable written notice (in the

case of Alternate Base Rate Loans), to the Administrative Agent, specifying the

date and amount of prepayment and whether the prepayment is of Revolving Credit

Loans or Term Loans or a combination thereof, with respect to each such type of

Loan, whether such prepayment is of Eurodollar Loans, Alternate Base Rate Loans

or a combination thereof, and, in each case if of a combination thereof, the

amount allocable to each.  If any such

notice is given, the amount specified in such notice shall be due and payable

on the date specified therein, together with (x) any amounts payable pursuant

to Section 2.16, (y) with respect to Eurodollar Loans, accrued interest

to such date on the amount prepaid and (z) any outstanding fees and expenses

then due and owing with respect to the amount prepaid.  Partial prepayments and optional prepayments

of the Revolving Credit Loans shall be applied to such Revolving Credit Loans

but shall not reduce the Revolving Credit Commitments unless the Borrower so

specifies in its written notice to the Administrative Agent.  Partial prepayments shall be in an aggregate

principal amount of $5,000,000 or a whole multiple of $1,000,000  in excess thereof.




 




(b)  If the Borrower or any of

its Subsidiaries shall at any time, or from time to time, after the date hereof

receive any Net Cash Proceeds in respect of any Reduction Event, then, on the

first Business Day immediately succeeding the date of such receipt, such Net

Cash Proceeds shall be applied to the prepayment of any Term Loans then

outstanding (or if the Closing Date shall not have occurred on or prior to such

Business Day, then the Term Loan Commitments then outstanding shall be

permanently reduced by an amount equal to such Net Cash Proceeds).




 




31





























 




(c)  Each prepayment of

Eurodollar Loans pursuant to this Section 2.6 shall be accompanied by

payment in full of all accrued interest thereon, to and including the date of

such prepayment, together with any additional amounts owing pursuant to Section

2.16 and any outstanding fees and expenses due and owing with respect to

the amount prepaid.




 




(d)  If at any time the

aggregate principal amount of Swingline Loans shall exceed the Swingline

Commitment, the Borrower shall immediately make payment on the Swingline Loans

in an amount sufficient to eliminate the excess.




 




2.7  Interest Rate Conversion and Continuation

Options  (a)  The Borrower may elect from time to time to

convert Eurodollar Loans of one Type of Loan to Alternate Base Rate Loans of

the same Type of Loan by giving the Administrative Agent prior irrevocable

notice of such election substantially in the form of Exhibit B-4 (a “Notice

of Interest Rate Conversion”) (which notice must be received by the

Administrative Agent by at least 10:00 a.m., New York City time, two Business

Days prior to such election); provided that any such conversion of

Eurodollar Loans may be made only on the last day of an Interest Period with

respect thereto.  The Borrower may elect

from time to time to convert Alternate Base Rate Loans of one Type of Loan

(other than a Swingline Loan) to Eurodollar Loans of the same Type of Loan by

giving the Administrative Agent prior irrevocable notice of such election

(which notice must be received by the Administrative Agent by at least 10:00

a.m., New York City time, three Business Days prior to such election).  Any such Notice of Interest Rate Conversion

to Eurodollar Loans shall specify the length of the initial Interest Period or

Interest Periods therefor.  Upon receipt

of any such notice, the Administrative Agent shall promptly notify each Lender

thereof.  All or any part of the

outstanding Eurodollar Loans and Alternate Base Rate Loans may be converted as

provided herein; provided that (i) no Loan may be converted into a

Eurodollar Loan when any Default has occurred and is continuing, (ii) no

Revolving Credit Loan may be converted into a Eurodollar Loan after the date

that is one month prior to the Termination Date, (iii) no Term Loan may be

converted into a Eurodollar Loan after the date that is one month prior to the

Termination Date, (iv) no Swingline Loan may be converted into a Eurodollar

Loan and (v) such conversion shall be in an aggregate principal amount of

$5,000,000 or a whole multiple of $1,000,000  in excess thereof.




 




(b)  Any Eurodollar Loans may be

continued as such upon the expiration of the then current Interest Period with

respect thereto by the Borrower giving notice to the Administrative Agent, in

accordance with the applicable provisions of the term “Interest Period” set

forth in Section 1.1 of the length of the next Interest Period to be

applicable to such Loans; provided that (i) no Eurodollar Loan may be

continued as such when any Default has occurred and is continuing, (ii) no

Eurodollar Loan which is a Revolving Credit Loan may be continued as a

Eurodollar Loan after the date that is one month prior to the Termination Date,

and (iii) no Eurodollar Loan which is a Term Loan may be continued as a

Eurodollar Loan after the date that is one month prior to the Termination Date;

provided, further, that if the Borrower shall fail to give any

required notice as described above in this paragraph, or if such continuation

is not permitted pursuant to the preceding proviso, such Loans shall be

automatically converted to




 




32





























 




Alternate Base

Rate Loans on the last day of such then expiring Interest Period.  The Administrative Agent agrees to notify

the Lenders of any notice of continuation referred to herein received by the

Administrative Agent.




 




2.8  Maximum Amounts of Eurodollar Tranches.  All borrowings, conversions and

continuations of Loans hereunder and all selections of Interest Periods

hereunder shall be in such amounts and shall be made pursuant to such elections

so that, after giving effect thereto, the aggregate principal amount of the

Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a

whole multiple of $1,000,000 in excess thereof.  There shall not be more than ten Eurodollar Tranches at any one

time outstanding.




 




2.9  Interest Rates; Default Rate Payment

Dates.  (a) Each

Eurodollar Loan shall bear interest for each day during each Interest Period

with respect thereto at a rate per annum equal to the Eurodollar Rate

determined for the first day of such Interest Period (subject to daily

adjustments, if any, required by changes in the Eurodollar Reserve

Requirements) plus the Applicable Margin then in effect for such Type of

Loans.




 




(b)  Each Alternate Base Rate

Loan shall bear interest at a rate per annum equal to the Alternate Base Rate plus

the Applicable Margin then in effect for such Type of Loans.




 




(c)  If an Event of Default has

occurred and is continuing, the Loans shall bear interest at a rate per annum

equal to the rate that would otherwise be applicable thereto pursuant to the

foregoing provisions of this Section plus 2% from the date of occurrence

of such Event of Default until the date such Event of Default is cured or

waived (after as well as before judgment). 

In addition, should any interest on such Loans or any Commitment Fees or

other amount (other than principal) payable hereunder not be paid when due

(whether at the stated maturity, by acceleration or otherwise), such overdue

amount shall bear interest (to the extent permitted by law in the case of

interest on interest) at a rate per annum as determined pursuant to the

preceding sentence, in each case, from the date of such non-payment until such

amount is paid in full (after as well as before judgment).




 




(d)  Interest shall be payable

in arrears on each Interest Payment Date; provided that interest

accruing pursuant to Section 2.9(c) shall be payable from time to time

on demand.




 




2.10      Computation of Interest.  (a) 

The Alternate Base Rate interest (when calculated based upon the prime

rate) shall be calculated on the basis of a 365/366 day year and all other

interest shall be calculated on the basis of a 360-day year for the actual days

elapsed.  The Administrative Agent shall

as soon as practicable notify the Borrower and the Lenders of each

determination of a Eurodollar Rate.  Any

change in the interest rate on a Loan resulting from a change in the Alternate

Base Rate, the Eurodollar Reserve Requirements or the Applicable Margin shall

become effective as of the opening of business on the day on which such change

becomes effective.  The Administrative




 




33





























 




Agent shall, as

soon as practicable, notify the Borrower and the Lenders of the effective date

and the amount of each such change in interest rate.




 




(b)  Each determination of an

interest rate by the Administrative Agent pursuant to any provision of this

Agreement shall be conclusive and binding on the Borrower and the Lenders in

the absence of manifest error.  The

Administrative Agent, at the request of the Borrower, shall deliver to the

Borrower a statement showing the quotations used by the Administrative Agent in

determining any interest rate pursuant to Section 2.10(a).




 




2.11      Inability to Determine Interest Rate.  If prior to the first day of any Interest

Period:




 




(a)  the Administrative Agent

shall have reasonably determined (which determination shall be conclusive and

binding upon the Borrower) that, by reason of circumstances affecting the

relevant market, adequate and reasonable means do not exist for ascertaining

the Eurodollar Rate for such Interest Period, or




 




(b)  the Administrative Agent

shall have received notice from the Required Lenders that the Eurodollar Rate

determined or to be determined for such Interest Period will not adequately and

fairly reflect the cost to such Lenders (as conclusively certified by such

Lenders) of making or maintaining its affected Loans during such Interest

Period, the Administrative Agent shall give telecopy or telephonic notice

thereof to the Borrower and the Lenders as soon as practicable thereafter.  If such notice is given, (x) any Eurodollar

Loans requested to be made on the first day of such Interest Period shall be

made as Alternate Base Rate Loans, (y) any Loans that were to have been converted

on the first day of such Interest Period to Eurodollar Loans shall be continued

as Alternate Base Rate Loans and (z) any outstanding Eurodollar Loans shall be

converted, on the first day of such Interest Period, to Alternate Base Rate

Loans.  Until such notice has been

withdrawn by the Administrative Agent, no further Eurodollar Loans shall be

made or continued as such, nor shall the Borrower have the right to convert

Alternate Base Rate Loans to Eurodollar Loans.




 




2.12      Pro Rata Treatment and Payments;

Funding Reliance. 

(a) Each borrowing by the Borrower of Revolving Credit Loans from the

Lenders hereunder, each payment by the Borrower on account of any Commitment

Fee hereunder and any reduction of the Revolving Credit Commitments of the

Lenders shall be made pro rata according to the respective Revolving Credit

Commitment Percentages of the Lenders. 

Each borrowing by the Borrower of Term Loans from the Lenders hereunder

and any reduction of the Term Loan Commitments of the Lenders shall be made pro

rata according to the respective Term Loan Commitment Percentages of the

Lenders.  Each payment (including each

prepayment) by the Borrower on account of principal of and interest on the

Loans of any one Type shall (except as may be required as a result of Section

2.16) be made pro rata according to the respective outstanding principal

amounts of the Loans of such Type then held by the Lenders.  All payments (including prepayments) to be

made by the Borrower hereunder and under the Notes, whether on account of

principal, interest, fees or otherwise, shall be made without setoff or




 




34





























 




counterclaim and

shall be made prior to 12:00 noon, New York City time, on the due date thereof

to the Administrative Agent, for the account of the Lenders, at the

Administrative Agent’s office specified in Section 9.2, in Dollars and

in immediately available funds.  The

Administrative Agent shall distribute such payments to the Lenders promptly

upon receipt in like funds as received. 

If any payment hereunder (other than payments on the Eurodollar Loans)

becomes due and payable on a day other than a Business Day, such payment shall

be extended to the next succeeding Business Day, and, with respect to payments

of principal and interest thereon, shall be payable at the then applicable rate

during such extension.




 




(b)  Unless the Administrative

Agent shall have been notified in writing by any Lender prior to a borrowing

that such Lender will not make available to the Administrative Agent the amount

that would constitute its applicable Commitment Percentage of such borrowing,

the Administrative Agent may assume that such Lender is making such amount

available to the Administrative Agent, and the Administrative Agent may, in

reliance upon such assumption, make available to the Borrower a corresponding

amount.  If the Administrative Agent

makes such amount available to the Borrower and if such amount is not made

available to the Administrative Agent by the required time on the Borrowing Date

therefor, such Lender shall pay to the Administrative Agent, on demand, such

amount with interest thereon at a rate equal to the daily average Federal Funds

Rate for the period until such Lender makes such amount immediately available

to the Administrative Agent.  A

certificate of the Administrative Agent submitted to any Lender with respect to

any amounts owing under this Section shall be conclusive in the absence of

manifest error.  If such Lender pays

such amount to the Administrative Agent, then such amount shall constitute such

Lender’s Loan included in such borrowing. 

If such Lender’s applicable Commitment Percentage of such borrowing is

not made available to the Administrative Agent by such Lender within three

Business Days of such Borrowing Date, the Administrative Agent shall also be

entitled to recover such amount with interest thereon at the rate per annum

applicable to the applicable Loan, on demand, from the Borrower.  The obligations of the Lenders hereunder are

several and no Lender shall be responsible for any other Lender’s failure to

make Loans as required hereunder.




 




2.13      Illegality.  Notwithstanding any other provision herein,

if the adoption of or any change in any Requirement of Law after the date

hereof or in the interpretation or application thereof shall make it unlawful

for any Lender to make or maintain Eurodollar Loans as contemplated by this

Agreement, (a) the commitment of such Lender hereunder to make Eurodollar

Loans, continue Eurodollar Loans as such and convert Alternate Base Rate Loans

to Eurodollar Loans shall forthwith be suspended until such condition shall

cease to exist and (b) such Lender’s Loans then outstanding as Eurodollar

Loans, if any, shall be converted automatically to Alternate Base Rate Loans on

the respective last days of the then current Interest Periods with respect to

such Loans or within such earlier period as required by law.  If any such conversion of a Eurodollar Loan

occurs on a day which is not the last day of the then current Interest Period

with respect thereto, the Borrower shall pay to such Lender such amounts, if

any, as may be required pursuant to Section 2.16.




 




35





























 




2.14      Requirements of Law.  (a) If the adoption of or any change in any

Requirement of Law or in the interpretation or application thereof or

compliance by any Lender with any request or directive (whether or not having

the force of law) from any central bank or other Governmental Authority made

subsequent to the date hereof:




 




(i)       shall subject any Lender to any tax of

any kind whatsoever with respect to this Agreement, its Notes, any Eurodollar

Loan, any Letter of Credit or any Lender’s participation therein, any LOC

Documents, or its obligation to make Eurodollar Loans, or change the basis of

taxation of payments to such Lender in respect thereof (except for Non-Excluded

Taxes covered by Section 2.15 and changes in the rate of tax on the

overall net income of such Lender);




 




(ii)      shall impose, modify or hold applicable

any reserve, special deposit, compulsory loan or similar requirement against

assets held by, deposits or other liabilities in or for the account of,

advances, loans or other extensions of credit by, or any other acquisition of

funds by, any office of such Lender which is not otherwise included in the

determination of the Eurodollar Rate hereunder; or




 




(iii)     shall impose on such Lender any other

condition;




 




and the result of any of the foregoing is to increase the cost to such

Lender, by an amount which such Lender reasonably deems to be material, of

making, converting into, continuing or maintaining Eurodollar Loans or any

Letter of Credit or LOC Document, or to reduce any amount receivable hereunder

in respect thereof, then, in any such case, the Borrower shall promptly pay

such Lender, upon its demand, any additional amounts necessary to compensate

such Lender for such increased cost or reduced amount receivable.  If any Lender becomes entitled to claim any

additional amounts pursuant to this Section, it shall promptly notify the

Borrower through the Administrative Agent, of the event by reason of which it

has become so entitled.  A certificate

as to any additional amounts payable pursuant to this Section submitted by such

Lender through the Administrative Agent to the Borrower shall be in writing and

accompanied by calculations in reasonable detail demonstrating the basis for

such Lender’s claim and shall be considered conclusive in the absence of

manifest error.  This covenant shall survive

the termination of this Agreement and the payment of the Obligations hereunder.




 




(b)  If any Lender shall have

determined that the adoption of or any change in any Requirement of Law

regarding capital adequacy or in the interpretation or application thereof or

compliance by such Lender or any corporation controlling such Lender with any

request or directive regarding capital adequacy (whether or not having the

force of law) from any Governmental Authority made subsequent to the date

hereof has or shall have the effect of reducing the rate of return on such

Lender’s or the corporation’s capital as a consequence of its obligations

hereunder to a level below that which such Lender or such corporation could

have achieved but for such change or compliance (taking into consideration such

Lender’s or such corporation’s policies with respect to capital adequacy) by an

amount deemed by such Lender to be material, then




 




36





























 




from time to time,

after submission by such Lender to the Borrower (with a copy to the

Administrative Agent ) of a written request therefor accompanied by

calculations in reasonable detail demonstrating the basis for such Lender’s

claims, the Borrower shall pay to such Lender the additional amount or amounts

as will compensate such Lender for such reduction.  This covenant shall survive the termination of this Agreement and

the payment of the Obligations hereunder.




 




2.15      Taxes.  (a) Any and all payments made by the

Borrower to or for the account of the Administrative Agent or any Lender under

this Agreement, the Notes or the other Loan Documents shall be made free and

clear of, and without deduction or withholding for or on account of, any

present or future income, stamp or other taxes, levies, imposts, duties,

charges, fees, deductions or withholdings, and all liabilities with respect

thereto, now or hereafter imposed, levied, collected, withheld or assessed by

any Governmental Authority, excluding net income taxes and franchise taxes

(imposed in lieu of net income taxes) imposed on the Administrative Agent or

any Lender by a jurisdiction under the Laws of which such Lender or its

applicable lending office, or the Administrative Agent, as the case may be, is

organized or maintained.  If any such non-excluded

taxes, levies, imposts, duties, charges, fees, deductions, withholdings or

liabilities (“Non-Excluded Taxes”) are required to be deducted or

withheld from or in respect of any amounts payable to the Administrative Agent

or any Lender hereunder or under the Notes, (i) the amounts so payable to the

Administrative Agent or such Lender shall be increased to the extent necessary,

so that after making all required deductions or withholdings (including

deductions or withholdings applicable to additional sums payable under this Section

2.15), the Administrative Agent or such Lender receives an amount equal to

the sum it would have received had no such deductions or withholdings been

made, (ii) the Borrower shall make such deductions or withholdings, and (iii)

the Borrower shall pay the full amount deducted or withheld to the relevant

Governmental Authority in accordance with applicable law; provided that

the Borrower shall not be required to increase any such amounts payable to any

Lender if such Lender fails to comply with the applicable requirements of

paragraph (b) of this Section.  Whenever

any Non-Excluded Taxes are payable by the Borrower, as promptly as possible

thereafter, the Borrower shall send to the Administrative Agent for its own

account or for the account of such Lender, as the case may be, a certified copy

of an original official receipt received by the Borrower showing payment

thereof.  The Borrower agrees to

indemnify and hold harmless each Lender and the Administrative Agent from the

full amount of Non-Excluded Taxes (including, without limitation, any such

taxes imposed or asserted by any jurisdiction on amounts payable under this Section

2.15) paid or incurred by such Lender or the Administrative Agent (as the

case may be) and any liability (including penalties, interest and expenses)

arising therefrom or with respect thereto. 

The covenants in this Section shall survive the termination of this

Agreement and the payment of the Notes and payment of the Obligations

hereunder.




 




(b)  Each Lender shall:




 




(i)   deliver to the Borrower and the

Administrative Agent (A) in the case of a Lender that is not incorporated under

the laws of the United States or any state thereof, either (x) two duly

completed copies of




 




37





























 




United States Internal Revenue Service Form W-8BEN or

W-8ECI, as applicable, or successor applicable forms, as the case may be, or,

(y) if such Lender is not a “bank” within the meaning of Section 881(c)(3)(A)

of the Code and intends to claim exemption from U.S.  Federal withholding tax under Section 871(h) or Section 881(c) of

the Code with respect to payments of “portfolio interest”, a Form W-8BEN, or

any subsequent versions thereof or successors thereto together with a

certificate executed by such Lender representing that (1) such Lender is not a

bank for purposes of Section 881(c) of the Code, is not a 10 percent

shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the

Borrower and is not a controlled foreign corporation related to the Borrower

(within the meaning of Section 864(d)(4) of the Code), and claiming complete

exemption from U.S.  Federal withholding

tax on payments of interest by the Borrower under this Agreement, the Notes and

the other Loan Documents and (2) the Lender has received in replacement of any

Note held by or assigned to it, a QFL Note in accordance with Section

2.15(c), and (B) in the case of any other Lender, an Internal Revenue

Service Form W-9, as applicable, or successor applicable form, as the case may

be;




 




(ii)    deliver to the Borrower and the

Administrative Agent two further copies of any such form or certification on or

before the date that any such form or certification expires or becomes obsolete

and after the occurrence of any event requiring a change in the most recent

form previously delivered by it to the Borrower; and




 




(iii)   obtain such extensions of time for filing and

complete such forms or certifications as may reasonably be requested by the

Borrower or the Administrative Agent;




 




unless in any such case an event (including, without limitation, any

change in treaty, law or regulation) has occurred prior to the date on which

any such delivery would otherwise be required which renders such form

inapplicable or which would prevent such Lender from duly completing and

delivering any such form with respect to it and such Lender so advises the

Borrower and the Administrative Agent. 

Such Lender shall certify (i) in the case of a Form W-8BEN or W-8ECI, as

applicable, that it is entitled to receive payments under this Agreement at a

reduced rate of withholding, or without deduction or withholding, as the case

may be, of any United States federal income taxes and (ii) in the case of a

Form W-9, that it is entitled to an exemption from United States backup

withholding tax.  Each Person that shall

become a Lender or a Participant pursuant to Section 9.6 shall, upon the

effectiveness of the related transfer, be required to provide all the

applicable forms and statements required pursuant to this Section; provided

that, in the case of a Participant, such Participant shall furnish all such

required forms and statements to the Lenders from which the related

participation shall have been purchased.




 




(c)  Any Lender that is not a

“bank” within the meaning of Section 881(c)(3)(A) of the Code and satisfies the

requirements of Section 2.15(b)(i)(A)(y) (a “Qualified Foreign Lender”)

shall, upon receipt of the written request of the




 




38





























 




Administrative

Agent or the Borrower and may, upon its own written request to the

Administrative Agent, exchange any Note held by or assigned to it for a

qualified foreign lender note ( a “QFL Note”).  A QFL Note shall be in the form of the applicable Note being

exchanged, but shall contain the following legend, “This Note is a QFL Note,

and as such, ownership of the obligation represented by such QFL Note may be

transferred only in accordance with Section 2.15 of the Credit

Agreement.”  Any QFL Note issued in

replacement of any existing Note pursuant to this Section 2.15(c) shall

be (i) dated the Closing Date, (ii) issued in the name of the entity in whose

name such existing Note was issued and (iii) issued in the same principal

amount as such existing Note.  Any Note

replaced pursuant to this Section is sometimes referred to herein as a “Replaced

Note”.




 




(d)           The Borrower agrees

that, upon the request of, or delivery of a request to, a Qualified Foreign

Lender pursuant to paragraph (c) of this Section, it shall execute and deliver

a QFL Note to the Administrative Agent in replacement of the Replaced Note

surrendered in connection with such request conforming to the requirements of

this paragraph.  Each Qualified Foreign

Lender shall surrender its Note in connection with any replacement pursuant to

this Section 2.15.  Upon receipt

by the Administrative Agent, in connection with any replacement, of a QFL Note

and the existing Note to be replaced by such QFL Note in accordance with this

paragraph, the Administrative Agent shall forward the QFL Note to the Lender

which has surrendered its Note for replacement by such QFL Note and shall

forward the surrendered Note to the Borrower marked “canceled”.  Once issued, QFL Notes (i) shall be deemed

to and shall be “Notes” for all purposes under the Loan Documents, (ii) may not

be exchanged for Notes which are not QFL Notes, notwithstanding anything to the

contrary in the Loan Documents and (iii) shall at all times thereafter be QFL

Notes, including, without limitation, following any transfer or assignment

thereof.




 




(e)           Notwithstanding anything

to the contrary in the Loan Documents, the QFL Notes are registered obligations

as to both principal and interest with the Borrower and transfer of the

obligations underlying such QFL Note may be effected only by surrender of the

QFL Note to the Borrower and either reissuance by the Borrower of such QFL Note

to the transferee or issuance by the Borrower of a new QFL Note to the

transferee.  A QFL Note shall only

evidence the Lender’s or an assignee’s right, title and interest in and to the

related obligation, and in no event is a QFL Note to be considered a bearer

instrument or obligation.  This Section

2.15 shall be construed so that the obligations underlying the QFL Notes

are at all times maintained in “registered form” within the meaning of Sections

871(h)(2) and 881(c)(2) of the Code.




 




2.16         Indemnity.  The Borrower agrees to indemnify each Lender

and to hold each Lender harmless from any loss or expense which such Lender may

sustain or incur as a consequence of (a) default by the Borrower in payment

when due of the principal amount of or interest on any Eurodollar Loan, (b)

default by the Borrower in making a borrowing of, conversion into or

continuation of Eurodollar Loans after the Borrower has given a notice

requesting the same, (c) default by the Borrower in making any prepayment after

the Borrower has given a notice thereof or (d) the making of a prepayment or

conversion of Eurodollar Loans on a day which is not the last day of an

Interest Period with respect thereto including, without limitation, in each

case, any such 




 




39





























 




loss or expense arising from the redeployment of funds

obtained by it or from fees payable to terminate the deposits from which such

funds were obtained.  This covenant shall

survive the termination of this Agreement and the payment of the Obligations

hereunder.




 




2.17         Discretion of Lender as to Manner of

Funding. 

Notwithstanding any other provisions of this Agreement (but subject to Section

2.18), each Lender shall be entitled to fund and maintain its funding of

all or any part of its Loans in any manner it sees fit, it being understood

that for the purposes of this Agreement all determinations hereunder shall be

made assuming each Lender had actually funded and maintained each Eurodollar

Loan through the purchase of deposits of Dollars in the London interbank market

having a maturity corresponding to each Loan’s Interest Period and bearing an

interest rate equal to the Eurodollar Rate for such Interest Period.




 




2.18         Change of Lending Office;

Replacement Lender. 

(a) Each Lender agrees that if it makes any demand for payment under Section

2.14 or Section 2.15 or if any adoption or change of the type

described in Section 2.13 shall occur with respect to it, such Lender

will use reasonable efforts (consistent with its internal policy and legal and

regulatory restrictions and so long as such efforts would not be

disadvantageous to it as determined in its sole discretion) to designate a

different lending office if the making of such a designation would reduce or

obviate the need for the Borrower to make payments under Section 2.14 or

Section 2.15, or would eliminate or reduce the effect of any adoption or

change described in Section 2.13.




 




(b)           In determining the

amount of any claim for reimbursement or compensation hereunder, each Lender

will use reasonable methods of calculation consistent with such methods

customarily employed by such Lender in similar situations.




 




(c)           Each Lender will

notify the Borrower and the Administrative Agent of any event giving rise to a

claim under Sections 2.13, 2.14, 2.15 or 2.16 promptly after the occurrence

thereof, which notice shall be accompanied by a certificate of such Lender

setting forth in reasonable detail the circumstances of such claim.




 




(d)           If any Lender, other

than (in its capacity as a Lender) the Administrative Agent (an “Affected

Lender”), seeks payment or indemnification from the Borrower pursuant to Section

2.14 or Section 2.15(a) (without prejudice to any amounts then due

to such Lender under such Sections) that are not applicable to all Lenders,

then the Borrower may designate another Lender or another bank or financial

institution acceptable to the Administrative Agent to assume, in accordance

with Section 9.6, all (but not less than all) the Commitments, Loans and

other rights and obligations of such Affected Lender hereunder (a “Replacement

Lender”), in each case, on a date mutually acceptable to the Replacement

Lender, the Affected Lender, the Borrower and the Administrative Agent, without

recourse upon, warranty by, or expense to, such Affected Lender or the

Administrative Agent, for a purchase price equal to the outstanding principal

amount of the Loans of such Affected Lender plus all interest accrued

thereon and all other amounts owing to such Affected Lender hereunder, or such

other purchase price as may be mutually agreed upon between the Affected Lender

and the Replacement




 




40





























 




Lender, upon such

assumption and purchase by the Replacement Lender, such Replacement Lender

shall be deemed a “Lender” for purposes of this Agreement and the other Loan

Documents and such Affected Lender shall cease to be a “Lender” for such

purposes and shall no longer have any obligations hereunder.




 




2.19         [Intentionally

Omitted]




 




2.20         Additional

Provisions relating to Letters of Credit.




 




(a)  Reports.  The Issuing Lender will provide to the

Administrative Agent bi-monthly, and more frequently upon request, a detailed

summary report on its Letters of Credit and the activity thereon, in form and

substance acceptable to the Administrative Agent.  In addition, the Issuing Lender will provide to the

Administrative Agent for dissemination to the Lenders at least quarterly (no

later than three Business Days before the end of each quarter), and more

frequently upon request, a detailed summary report on its Letters of Credit and

the activity thereon, including, among other things, the beneficiary, the face

amount, and the expiry date.  The

Issuing Lender will provide copies of the Letters of Credit to the

Administrative Agent and the Lenders promptly upon request.




 




(b)  Participation.  Each Lender, with respect to Letters of

Credit issued on or after the Closing Date, upon issuance of a Letter of

Credit, shall be deemed to have purchased without recourse a risk participation

from the Issuing Lender in such Letter of Credit and the obligations arising

thereunder, in each case in an amount equal to its pro rata share of the

obligations under such Letter of Credit (based on the respective Revolving

Credit Commitment Percentages of the Lenders) and shall absolutely,

unconditionally and irrevocably assume, as primary obligor and not as surety,

and be obligated to pay to the Issuing Lender therefor and discharge when due,

its pro rata share of the obligations arising under such Letter of

Credit.  Without limiting the scope and

nature of each Lender’s participation in any Letter of Credit, to the extent

that the Issuing Lender has not been reimbursed as required hereunder or under

any such Letter of Credit, each Lender shall pay to the Issuing Lender its pro

rata share of such unreimbursed drawing in same day funds on the day of

notification by the Issuing Lender of an unreimbursed drawing pursuant to the

provisions of subsection (d) hereof. 

The obligation of each Lender to so reimburse the Issuing Lender shall

be absolute and unconditional and shall not be affected by the occurrence of a

Default, an Event of Default or any other occurrence or event.  Any such reimbursement shall not relieve or

otherwise impair the obligation of the Borrower to reimburse the Issuing Lender

under any Letter of Credit, together with interest as hereinafter provided.




 




(c)  Reimbursement.  In the event of any drawing under any Letter

of Credit, the Issuing Lender will promptly notify the Borrower.  Unless the Borrower shall immediately notify

the Issuing Lender that the Borrower intends to otherwise reimburse the Issuing

Lender for such drawing, the Borrower shall be deemed to have requested that

the Lenders make a Revolving Credit Loan in the amount of the drawing as

provided in subsection (d) hereof on the related Letter of Credit, the proceeds

of which will be used to satisfy the related reimbursement obligations.  The Borrower promises to reimburse




 




41





























 




the Issuing Lender

on the day of drawing under any Letter of Credit (either with the proceeds of a

Revolving Credit Loan obtained hereunder or otherwise) in same day funds.  If the Borrower shall fail to reimburse the

Issuing Lender as provided herein above, the unreimbursed amount of such

drawing shall bear interest at a per annum rate equal to the Alternate Base

Rate plus the sum of (i) the Applicable Margin for Revolving Credit

Loans comprising Alternate Base Rate Loans plus (ii) two percent

(2%).  The Borrower’s reimbursement

obligations hereunder shall be absolute and unconditional under all

circumstances irrespective of any rights of setoff, counterclaim or defense to

payment the Borrower may claim or have against the Issuing Lender, the

Administrative Agent, the Lenders, the beneficiary of the Letter of Credit

drawn upon or any other Person, including without limitation any defense based

on any failure of the Borrower to receive consideration or the legality,

validity, regularity or unenforceability of the Letter of Credit.  The Issuing Lender will promptly notify the

Administrative Agent which shall promptly thereafter notify the other Lenders

of the amount of any unreimbursed drawing and each Lender shall promptly pay to

the Administrative Agent for the account of the Issuing Lender in Dollars and

in immediately available funds, the amount of such Lender’s Revolving Credit

Commitment Percentage of such unreimbursed drawing.  Such payment shall be made on the day such notice is received by

such Lender from the Issuing Lender if such notice is received at or before

10:00 A.M. (New York, New York time) otherwise such payment shall be made at or

before 10:00 A.M. (New York, New York time) on the Business Day next succeeding

the day such notice is received.  If

such Lender does not pay such amount to the Issuing Lender in full upon such

request, such Lender shall, on demand, pay to the Administrative Agent for the

account of the Issuing Lender interest on the unpaid amount during the period

from the date of such drawing until such Lender pays such amount to the Issuing

Lender in full at a rate per annum equal to, if paid within two (2) Business

Days of the date that such Lender is required to make payments of such amount

pursuant to the preceding sentence, the Federal Funds Rate and thereafter at a

rate equal to the Alternate Base Rate. 

Each Lender’s obligation to make such payment to the Issuing Lender, and

the right of the Issuing Lender to receive the same, shall be absolute and

unconditional, shall not be affected by any circumstance whatsoever and without

regard to the termination of this Agreement or the Commitments hereunder, the

existence of a Default or Event of Default or the acceleration of the obligations

of the Borrower hereunder and shall be made without any offset, abatement,

withholding or reduction whatsoever. 

Simultaneously with the making of each such payment by a Lender to the

Issuing Lender, such Lender shall, automatically and without any further action

on the part of the Issuing Lender or such Lender, acquire a participation in an

amount equal to such payment (excluding the portion of such payment

constituting interest owing to the Issuing Lender) in the related unreimbursed

drawing portion of the LOC Obligation and in the interest thereon and in the related

LOC Documents, and shall have a claim against the Borrower with respect

thereto.




 




(d)  Repayment with Revolving

Credit Loans.  On any day on which

the Borrower shall have requested, or been deemed to have requested, a

Revolving Credit Loan advance to reimburse a drawing under a Letter of Credit,

the Administrative Agent shall give notice to the Lenders that a Revolving

Credit Loan has been requested or deemed requested by the Borrower to be made

in connection with a drawing under a Letter of Credit, in which case a

Revolving Credit Loan advance comprised of Alternate




 




42





























 




Base Rate Loans

(or Eurodollar Loans to the extent the Borrower has complied with the

procedures of Section 2.3(b) with respect thereto) shall be immediately

made to the Borrower by all Lenders (notwithstanding any termination of the

Commitments pursuant to Article 7) pro  rata based on the

respective Revolving Credit Commitment Percentages of the Lenders (determined

before giving effect to any termination of the Commitments pursuant to Article

7) and the proceeds thereof shall be paid directly to the Issuing Lender for

application to the respective LOC Obligations. 

Each such Lender hereby irrevocably agrees to make its pro rata

share of each such Revolving Credit Loan immediately upon any such request or

deemed request in the amount, in the manner and on the date specified in the

preceding sentence notwithstanding (i) the amount of such borrowing

may not comply with the minimum amount for advances of Revolving Credit Loans

otherwise required hereunder, (ii) whether any conditions specified in Section

4.2 are then satisfied, (iii) whether a Default or an Event of Default

then exists, (iv) failure for any such request or deemed request for

Revolving Credit Loan to be made by the time otherwise required hereunder,

(v) whether the date of such borrowing is a date on which Revolving Credit

Loans are otherwise permitted to be made hereunder or (vi) any termination

of the Commitments relating thereto immediately prior to or contemporaneously

with such borrowing.  In the event that

any Revolving Credit Loan cannot for any reason be made on the date otherwise

required above (including, without limitation, as a result of the commencement

of a proceeding under the Bankruptcy Code with respect to the Borrower or any

Subsidiary), then each such Lender hereby agrees that it shall forthwith

purchase (as of the date such borrowing would otherwise have occurred, but

adjusted for any payments received from the Borrower on or after such date and

prior to such purchase) from the Issuing Lender such participation in the

outstanding LOC Obligations as shall be necessary to cause each such Lender to

share in such LOC Obligations ratably (based upon the respective Revolving

Credit Commitment Percentages of the Lenders (determined before giving effect

to any termination of the Commitments pursuant to Article 7)), provided

that in the event such payment is not made on the day of drawing, such Lender

shall pay in addition to the Issuing Lender interest on the amount of its

unfunded participation at a rate equal to, if paid within two (2) Business Days

of the date of drawing, the Federal Funds Rate, and thereafter at the Alternate

Base Rate.




 




(e)  Designation of Other

Credit Parties as Account Parties. 

Notwithstanding anything to the contrary set forth in this Agreement,

including without limitation Section 2.3(b) hereof, a Letter of Credit

issued hereunder may contain a statement to the effect that such Letter of

Credit is issued for the account of a Subsidiary, provided that

notwithstanding such statement, the Borrower shall be the actual account party

for all purposes of this Agreement for such Letter of Credit and such statement

shall not affect the Borrower’s reimbursement obligations hereunder with

respect to such Letter of Credit.




 




(f)  Renewal, Extension.  The renewal or extension of any Letter of

Credit shall, for purposes hereof, be treated in all respects the same as the

issuance of a new Letter of Credit hereunder.




 




43





























 




(g)  Uniform Customs and

Practices.  The Issuing Lender may

have the Letters of Credit be subject to The Uniform Customs and Practice for

Documentary Credits, as published as of the date of issue by the International

Chamber of Commerce (the “UCP”) or the International Standby Practices

(the “ISP”), as applicable, in which case the UCP or ISP, as applicable,

may be incorporated therein and deemed in all respects to be a part thereof.




 




(h)  Indemnification; Nature

of Issuing Lender’s Duties.




 




(i)            In addition to its other obligations

under this Section 2.20, the Borrower hereby agrees to protect,

indemnify, pay and save the Issuing Lender harmless from and against any and

all claims, demands, liabilities, damages, losses, costs, charges and expenses

(including reasonable attorneys’ fees) that the Issuing Lender may incur or be

subject to as a consequence, direct or indirect, of (A) the issuance of

any Letter of Credit or (B) the failure of the Issuing Lender to honor a

drawing under a Letter of Credit as a result of any act or omission, whether

rightful or wrongful, of any present or future de jure or de facto Governmental

Authority (all such acts or omissions, herein called “Government Acts”).




 




(ii)           As between the Borrower and the

Issuing Lender, the Borrower shall assume all risks of the acts, omissions or

misuse of any Letter of Credit by the beneficiary thereof.  The Issuing Lender shall not be

responsible:  (A) for the form,

validity, sufficiency, accuracy, genuineness or legal effect of any document

submitted by any party in connection with the application for and issuance of

any Letter of Credit, even if it should in fact prove to be in any or all

respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for

the validity or sufficiency of any instrument transferring or assigning or

purporting to transfer or assign any Letter of Credit or the rights or benefits

thereunder or proceeds thereof, in whole or in part, that may prove to be

invalid or ineffective for any reason; (C) for errors, omissions, interruptions

or delays in transmission or delivery of any messages, by mail, cable,

telegraph, telex or otherwise, whether or not they be in cipher; (D) for

any loss or delay in the transmission or otherwise of any document required in

order to make a drawing under a Letter of Credit or of the proceeds thereof;

and (E) for any consequences arising from causes beyond the control of the

Issuing Lender, including, without limitation, any Government Acts unless, in

any case, any of the foregoing is caused by the gross negligence or willful

misconduct of the Issuing Lender, as determined by a court of competent

jurisdiction.  None of the above shall

affect, impair, or prevent the vesting of the Issuing Lender’s rights or powers

hereunder.




 




(iii)          In furtherance and extension and not

in limitation of the specific provisions hereinabove set forth, any action

taken or omitted by the Issuing Lender, under or in connection with any Letter

of Credit or the related certificates, if taken or omitted in good faith, shall

not put such Issuing Lender under any resulting liability to the Borrower.  It is the intention of the parties that this

Agreement shall be construed and applied to protect and indemnify the Issuing

Lender against any and all risks involved in the issuance of the Letters of

Credit, all of which risks are hereby assumed by the Borrower, including,

without limitation, any and all Government Acts.  The Issuing




 




44





























 




Lender shall not, in any way, be liable for any

failure by the Issuing Lender or anyone else to pay any drawing under any

Letter of Credit as a result of any Government Acts or any other cause beyond

the control of the Issuing Lender.




 




(iv)          Nothing in this subsection (h) is

intended to limit the reimbursement obligations of the Borrower contained in

subsection (d) above.  The obligations

of the Borrower under this subsection (h) shall survive the termination of this

Agreement.  No act or omissions of any

current or prior beneficiary of a Letter of Credit shall in any way affect or

impair the rights of the Issuing Lender to enforce any right, power or benefit

under this Agreement.




 




(v)           Notwithstanding anything to the

contrary contained in this subsection (h), the Borrower shall have no

obligation to indemnify the Issuing Lender, and waivers of liability shall be

ineffective in respect of any liability incurred by the Issuing Lender arising

solely out of the gross negligence or willful misconduct of the Issuing Lender,

as determined by a court of competent jurisdiction.




 




(i)          Responsibility

of Issuing Lender. It is expressly understood and agreed that the obligations

of the Issuing Lender hereunder to the Lenders are only those expressly set

forth in this Agreement and that the Issuing Lender shall be entitled to assume

that the conditions precedent set forth in Section 4.2 have been

satisfied unless it shall have acquired actual knowledge that any such

condition precedent has not been satisfied; provided, however,

that nothing set forth in this Section 2.20 shall be deemed to prejudice

the right of any Lender to recover from the Issuing Lender any amounts made

available by such Lender to the Issuing Lender pursuant to this Section 2.20

in the event that it is determined by a court of competent jurisdiction that

the payment with respect to a Letter of Credit constituted gross negligence or

willful misconduct on the part of the Issuing Lender.




 




(j)            Conflict with

LOC Documents.  Solely as among the

parties hereto, in the event of any conflict between this Agreement and any LOC

Document (including any letter of credit application), this Agreement shall

control.




 




2.21         Additional

Provisions Relating to Swingline Loans. 

The Swingline Lender may, at any time, in its sole discretion, by

written notice to the Borrower and the Lenders, demand repayment of its

Swingline Loans by way of a Revolving Credit Loan advance, in which case the

Borrower shall be deemed to have requested a Revolving Credit Loan advance

comprised solely of Alternate Base Rate Loans in the amount of such Swingline

Loans; provided, however, that any such demand shall be deemed to

have been given one (1) Business Day prior to the Termination Date and on the

date of the occurrence of any Event of Default described in Article 7

and upon acceleration of the indebtedness hereunder and the exercise of

remedies in accordance with the provisions of Article 7.  Each Lender hereby irrevocably agrees to

make its Revolving Credit Commitment Percentage of each such Revolving Credit

Loan in the amount, in the manner and on the date specified in the preceding

sentence notwithstanding (i) the amount of such borrowing may not

comply with the minimum amount for advances of Revolving Credit Loans otherwise

required hereunder,




 




45





























 




(ii) whether any conditions specified in Section

2.3 are then satisfied, (iii) whether a Default or an Event of Default

then exists, (iv) failure of any such request or deemed request for

Revolving Credit Loan to be made by the time otherwise required hereunder,

(v) whether the date of such borrowing is a date on which Revolving Credit

Loans are otherwise permitted to be made hereunder or (vi) any termination

of the Commitments relating thereto prior to or contemporaneously with such

borrowing.  In the event that any

Revolving Credit Loan cannot for any reason be made on the date otherwise

required above (including, without limitation, as a result of the commencement

of a proceeding under the Bankruptcy Code with respect to the Borrower), then

each Lender hereby agrees that it shall forthwith purchase (as of the date such

borrowing would otherwise have occurred, but adjusted for any payments received

from the Borrower on or after such date and prior to such purchase) from the

Swingline Lender such participations in the outstanding Swingline Loans as

shall be necessary to cause each such Lender to share in such Swingline Loans

ratably based upon its Revolving Credit Commitment Percentage (determined

before giving effect to any termination of the Commitments, provided

that (A) all interest payable on the Swingline Loans shall be for the

account of the Swingline Lender until the date as of which the respective

participation is funded and (B) at the time any purchase of participation

pursuant to this sentence is actually made, the purchasing Lender shall be

required to pay to the Swingline Lender, to the extent not paid to the Swingline

Lender by the Borrower in accordance with the terms of Section 2.5,

interest on the principal amount of participations purchased for each day from

and including the day upon which such borrowing would otherwise have occurred

to but excluding the date of payment for such participations, at the rate equal

to the Federal Funds Rate.




 




2.22         Participations in Letters of Credit

and Swingline Loans. 

Each Lender’s obligation to make Revolving Credit Loans, and its

obligation to participate in Letters of Credit or Swingline Loans, pursuant to

Section 2.20(d) and 2.21 shall be absolute and unconditional and shall not be

affected by any circumstance, including without limitation, (i) any set-off,

counterclaim, recoupment, defense or other right which such Lender may have

against the Issuing Lender, the Swingline Lender, the Borrower or any other

Person for any reason whatsoever, (ii) any adverse change in condition

(financial or otherwise) of the Borrower or any of its Subsidiaries, (iii) any

breach of this Agreement by the Borrower or any other Lender or (iv) any other

circumstance, happening or event whatsoever, whether or not similar to any of

the foregoing.




 




2.23         NW Restructuring.  In the event that the Borrower wishes to

consummate a proposed NW Restructuring after date hereof, the Borrower shall

give the Administrative Agent and the Lenders written notice (in form and

substance satisfactory to the Administrative Agent) setting forth, in

reasonable detail, the timing, structure and terms of such NW Restructuring.  If the proposed NW Restructuring would

require any amendment or waiver to this Agreement, the Borrower shall not be

permitted to consummate such proposed NW Restructuring unless and until the

Borrower, the Administrative Agent and the Required Lenders enter into an

amendment and/or waiver agreement in form and substance satisfactory to the

Borrower, the Administrative Agent and the Required Lenders (and any conditions

precedent set forth in such amendment or




 




46





























 




waiver shall have been satisfied); provided that

neither the Administrative Agent nor any Lender shall have any obligation to

enter into any such amendment or waiver agreement.




 




ARTICLE

3.  REPRESENTATIONS AND WARRANTIES




 




To induce the

Administrative Agent and the Lenders to enter into this Agreement and to make

or participate in extensions of credit hereunder, the Borrower hereby

represents and warrants to the Administrative Agent and each Lender:




 




3.1  Financial

Condition.  (a)

The consolidated balance sheets of the Borrower as of December 31, 1998,

December 31, 1999 and December 31, 2000 and the related consolidated statements

of income, retained earnings and cash flows for the fiscal year ended on such

date, and the unaudited consolidated balance sheets of the Borrower and its

Consolidated Subsidiaries as of September 30, 2001; and the related

consolidated statements of income, retained earnings and cash flows for the

period ending as of such date, reported on, in the case of the annual audited

financial statements, by Arthur Andersen LLP, copies of which have heretofore

been furnished to the Lenders, present fairly the consolidated financial

condition of the Borrower and its Consolidated Subsidiaries as at such date,

and the results of their operations and their retained earnings and cash flows

for each of the fiscal periods then ended. 

All such financial statements, including the related schedules and notes

thereto relating to the audited financials, have been prepared in accordance

with GAAP applied consistently throughout the periods involved.




 




(b)           All balance sheets,

all statements of income and shareholders equity and of cash flows and all

other financial information which shall hereafter be furnished by or on behalf

of or the Borrower to the Administrative Agent for the purposes of, or in

connection with, this Agreement or any transaction contemplated hereby have

been or will be prepared in accordance with GAAP consistently applied

throughout the periods involved (except as disclosed therein) and do or will

present fairly (subject to normal year-end adjustment and the absence of

footnotes in the case of financial statements for any fiscal quarter) the

financial condition of the Borrower and its Consolidated Subsidiaries, as the

case may be, as at the dates thereof and the results of their operations and

their shareholders equity and cash flows for the periods then ended.




 




3.2  No Change.  Since December 31, 2000, there has been no

development or event which has had a Material Adverse Effect.




 




3.3  Corporate Existence; Compliance with Law.  Each of the Borrower and its Subsidiaries

(a) is duly organized, validly existing and in good standing under the laws of

the jurisdiction of its organization, (b) has the corporate or limited

liability company power and authority, and the legal right to own and operate

its property, to lease the property it operates as lessee and to conduct the

business in which it is currently engaged, (c) is duly qualified as a foreign

corporation or limited liability company and in good standing under the laws of

each jurisdiction where its ownership, lease or operation of property or the

conduct of its business requires such qualification except to the extent that

the failure to comply therewith could not, in the aggregate, reasonably be

expected to




 




47





























 




have a Material Adverse Effect and (d) is in

compliance with all Requirements of Law, except to the extent that the failure

to comply therewith could not reasonably be expected to have a Material Adverse

Effect.




 




3.4  Corporate Power; Authorization;

Enforceable Obligations. 

The Borrower has the corporate power and authority, and the legal right,

to make, deliver and perform the Loan Documents to which it is a party and the

Acquisition Agreement and to authorize the execution, delivery and performance

of the Loan Documents and the Acquisition Agreement, and to borrow

hereunder.  The Borrower has taken all

necessary corporate action to authorize the borrowings on the terms and conditions

set forth in this Agreement and in the Notes and to consummate the Acquisition

on the terms and conditions set forth in the Acquisition Agreement.  No consent or authorization of, filing with,

notice to or other act by or in respect of, any Governmental Authority or any

other Person is required in connection with the borrowings hereunder, with the

consummation of the Acquisition or ownership, lease or operation of the assets

and securities of MPC that the Borrower intends to acquire pursuant to the terms

of the Acquisition Agreement, or with the execution, delivery, performance,

validity or enforceability of the Loan Documents to which the Borrower is a

party or the Acquisition Agreement other than (x) as set forth on Schedule

3.4, or (y) any consents, authorizations and filings in connection with the

foregoing that, if not obtained, could not reasonably be expected to have a

Material Adverse Effect.  On the Closing

Date, the Administrative Agent and each Lender shall have received complete and

current copies of all consents, authorizations and filings listed on Schedule

3.4.  No such consent, authorization

or filing is conditioned upon or otherwise imposes any materially burdensome or

adverse condition.  On the Closing Date,

all applicable waiting periods shall have expired without any action being

taken by any competent authority which restrains, prevents or imposes

materially adverse conditions upon any of the Transactions.  This Agreement and the Acquisition Agreement

have been, and each other Loan Document will be, duly executed and delivered on

behalf of the Borrower.  This Agreement

and the Acquisition Agreement constitute, and each other Loan Document when

executed and delivered will constitute, a legal, valid and binding obligation

of the Borrower enforceable against the Borrower, in accordance with its terms,

except as enforceability may be limited by applicable bankruptcy, insolvency,

reorganization, moratorium or similar laws affecting the enforcement of

creditors’ rights generally and by general equitable principles (whether

enforcement is sought by proceedings in equity or at law).




 




3.5  No Legal Bar.  The execution, delivery and performance of

the Loan Documents and the Acquisition Agreement, the borrowings hereunder and

the use of the proceeds thereof, and the consummation of the Acquisition will

not violate any Requirement of Law or Contractual Obligation of the Borrower or

any Subsidiary which violation could reasonably be expected to have a Material

Adverse Effect, will not accelerate or result in the acceleration of any

payment obligations of the Borrower or such Subsidiary and will not result in,

or require, the creation or imposition of any Lien on any of the respective

properties or revenues of the Borrower or any such Subsidiary pursuant to any

such Requirement of Law or Contractual Obligation.




 




48





























 




3.6  No Material Litigation.  (a) 

Except as set forth in Schedule 3.6, no litigation, investigation

or proceeding of or before any arbitrator or Governmental Authority is pending

or, to the knowledge of the Borrower, threatened by or against the Borrower or

any Subsidiary or against any of the respective properties or revenues of the

Borrower or any Subsidiary which could reasonably be expected to have a

Material Adverse Effect.




 




(b)           No litigation,

investigation or proceeding of or before any Governmental Authority is pending

or, to the knowledge of the Borrower, is threatened (i) challenging the

consummation of the Transactions or which would restrain, prevent or impose

burdensome conditions on the Transactions, individually or in the aggregate, or

any other transaction contemplated hereby, (ii) seeking to prohibit the

ownership or operation by the Borrower or any of its subsidiaries or, to the

knowledge of the Borrower, MPC or any of its subsidiaries of all or a material

portion of any of their business or assets, or (iii) seeking to obtain, or

having resulted in the entry of, any judgment, order or injunction that (A)

would restrain, prohibit or impose adverse conditions on the ability of the

Lenders to make the Loans under this Agreement, (B) could reasonably be

expected to affect the legality, validity or enforceability of any Loan

Document or the ability of any party thereto to perform its obligations

thereunder, (C) would be materially inconsistent with the stated assumptions

underlying the projections provided to the Administrative Agent or the Lenders,

or (D) is seeking any material damages as a result thereof; which, solely in

the case of any private civil action or proceeding, (1) has a reasonable basis

for success and (2) singly or in the aggregate could reasonably be expected to

have a Material Adverse Effect.




 




3.7  No Default.  No Default or Event of Default has occurred

and is continuing.




 




3.8  Ownership of Property; Liens.  Except as set forth in Schedule 3.8,

each of the Borrower and its Material Subsidiaries has good record and

marketable title in fee simple to, or a valid leasehold interest in, all its

material real property, and good title to, or a valid leasehold interest in,

all its other material property.  None

of such property is subject to any Lien other than Permitted Liens.




 




3.9  [Intentionally

Omitted].




 




3.10      Intellectual Property.  Each of the Borrower and its Subsidiaries

owns, or is licensed to use, all patents, trademarks, trade names, copyrights,

technology, know-how, processes, logos and insignia necessary for the conduct

of its business as currently conducted except for those which the failure to

own or license could not reasonably be expected to have a Material Adverse

Effect (the “Intellectual Property”). 

No claim has been asserted and is pending by any Person challenging or

questioning the use of any such Intellectual Property or the validity or

effectiveness of any such Intellectual Property which could reasonably be

expected to have a Material Adverse Effect, nor does the Borrower or any

Consolidated Subsidiary know of any valid basis for any such claim.  The use of such Intellectual Property by the

Borrower or any Subsidiary does not infringe on the rights of any Person,

except for such claims and infringements




 




49





























 




that, in the aggregate, could not reasonably be

expected to have a Material Adverse Effect.




 




3.11      No

Burdensome Restrictions.    No Requirement of

Law or Contractual Obligation of the Borrower or any Subsidiary could

reasonably be expected to have a Material Adverse Effect.




 




3.12      Taxes.   Except as set forth in Schedule 3.12,

each of the Borrower and the Subsidiaries has filed or caused to be filed all

federal, state and other material tax returns which are required to be filed

and has paid all taxes (including interest and penalties) shown to be due and

payable on said returns or on any assessments made against it or any of its

property and all other taxes, fees or other charges imposed on it or any of its

property by any Governmental Authority (other than any tax, fee or other charge

the amount or validity of which is currently being contested in good faith by

appropriate proceedings and with respect to which reserves in conformity with

GAAP have been provided on the books of the Borrower or such Subsidiary, as the

case may be); and no tax Lien has been filed, and, to the knowledge of the

Borrower, no claim is being asserted, with respect to any such tax, fee or

other charge.




 




3.13      Margin Stock.   (a) The Borrower is not engaged in the

business of extending credit for the purpose of purchasing or carrying margin

stock (within the meaning of Regulation U), and no proceeds of any extension of

credit hereunder will be used to purchase or carry any margin stock or to

extend credit to others for the purpose of purchasing or carrying any margin

stock, except in compliance with applicable law and regulations.




 




(b)  Following application of the proceeds of

each extension of credit hereunder, not more than 25% of the value of the

consolidated assets of the Borrower and its Consolidated Subsidiaries that are

subject to the provisions of Section 6.3 will be comprised of margin

stock.




 




3.14      ERISA.     Neither the Borrower nor any Subsidiary

maintains, contributes to or has material obligations with respect to, any

welfare plan (as defined in Section(3)(1) of ERISA) which provides

benefits to employees after termination of employment other than as required by

Part 6 of Title I of ERISA or similar state laws regarding continuation of

benefits.  Each Plan has complied and is

in compliance in all respects with the applicable provisions of ERISA and the

Code except where failure to do so could not reasonably be expected to have a

Material Adverse Effect.  The Borrower

and each Subsidiary have not breached any of the responsibilities, obligations

or duties imposed on it by ERISA, the Code, or regulations promulgated

thereunder with respect to any Plan, which breach could reasonably be expected

to have a Material Adverse Effect. 

Neither the Borrower nor any Subsidiary nor any fiduciary of any Plan

who is an officer or an employee of the Borrower or any Subsidiary has engaged

in a nonexempt prohibited transaction described in Section 406 of ERISA or 4975

of the Code with respect to a Plan which could reasonably be expected to have a

Material Adverse Effect.  With respect

to any employee benefit plan (as defined in Section 3(3) of ERISA) currently or

formerly maintained or contributed to by any Commonly Controlled Entity,




 




50





























 




no liability exists and no event has occurred which

could subject the Borrower or any Subsidiary to any liability which could

reasonably be expected to have a Material Adverse Effect.  Except as disclosed in Schedule 3.14,

none of the Borrower or any Subsidiary has any liability, direct or indirect,

contingent (including, without limitation, any such liability in connection

with a Multiemployer Plan) or otherwise, under Title IV of ERISA or under

Section 412 of the Code which could reasonably be expected to have a Material

Adverse Effect.




 




3.15         Holding Company; Investment Company

Act; Other Regulations.  

The Borrower is not (a) prior to the

Closing Date, a “holding company”, a “subsidiary company” of a “holding

company”, or an “affiliate” of a “holding company”, as such terms are defined

in the Public Utility Holding Company Act of 1935, as amended, (b) an “investment

company” or a company “controlled” by an “investment company”, within the

meaning of the Investment Company Act of 1940, as amended, or (c) except as

described on Schedule 3.15, 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 an ISO.  On

and after the Closing Date, the Borrower is either (i) not a “holding company”,

a “subsidiary company” of a “holding company”, or an “affiliate” of a “holding

company”, or (ii) an “exempt holding company,” as each such terms are defined

in the Public Utility Holding Company Act of 1935, as amended.  As of the Closing Date, the Borrower has

duly filed in good faith, an application on Form U-1 seeking an exemption under

Section 3(a)(3) of the Public Utility Holding Company Act of 1935, as amended.




 




3.16         Purpose of Loans.   The proceeds of Revolving Credit Loans will

be used solely for general corporate purposes of the Borrower and its

Subsidiaries (in compliance with all applicable legal and regulatory

requirements) including up to but not exceeding $25,000,000 to finance the

Acquisition, the Refinancing and the payment of related fees and expenses.  The proceeds of Term Loans will be used for

general corporate purposes of the Borrower and its Subsidiaries (in compliance

with all applicable legal and regulatory requirements) including, without

limitation, (i) to finance the Acquisition, the Refinancing and the payment of

related fees and expenses and (ii) to repay other Indebtedness outstanding on

the date hereof.




 




3.17         Environmental

Matters.   Except

as set forth on Schedule 3.17,




 




(a)           The facilities and properties owned,

leased or operated by the Borrower and its Subsidiaries and the facilities and

properties owned, leased or operated by MPC that the Borrower intends to

acquire pursuant to the terms of the Acquisition Agreement (the “Properties”)

and all operations at the Properties are in, and have been in, compliance in

all material respects with all applicable Environmental Laws, and there is no

contamination in, at, under, from or about the Properties or violation of any

Environmental Law or other circumstance or condition, with respect to the Properties

or the business operated by the Borrower and its Subsidiaries or MPC, or any

predecessor of any of them (the “Business”) which in either case could

reasonably be expected to result in any claims, liability, investigation or

cost pursuant to any Environmental Law and to have a Material Adverse Effect.




 




 




51





























 




(b)  None of the Borrower, any Subsidiary or MPC,

or any predecessor of any of them, has received any notice of violation,

alleged violation, non-compliance, liability or potential liability regarding

environmental matters or compliance with Environmental Laws with regard to any

of the Properties or the Business, nor do the Borrower or any Subsidiary have

knowledge or reason to believe that any such notice will be received or is

being threatened, in each case which could reasonably be expected to have a

Material Adverse Effect.




 




(c)  There has been no Release or threat of

Release of Materials of Environmental Concern at or from any of the Properties,

or arising from or related to the operations of the Borrower or any Subsidiary,

or any predecessor of any of them, in connection with any of the Properties or

otherwise in connection with the Business that could reasonably be expected to

have a Material Adverse Effect.




 




3.18         Insurance.     All policies of insurance of any kind or

nature maintained by or issued to the Borrower or any Subsidiary, including,

without limitation, policies of life, fire, theft, product liability, public

liability, property damage, other casualty, employee fidelity, worker’s

compensation, employee health and welfare, title, property and liability

insurance, are in full force and effect in all material respects and are of a

nature and provide such coverage as is sufficient and as is customarily carried

by companies of similar size and character.




 




3.19         Accuracy and Completeness of

Information.    

All information, reports and other papers and data (other than

projections) with respect to the Borrower or any Consolidated Subsidiary, or,

to the knowledge of the Borrower, any Subsidiary furnished to the Lenders by

the Borrower, or on behalf of the Borrower, and all SEC Reports were, at the

time furnished, complete and correct in all material respects, or have been

subsequently supplemented by other information, reports or other papers or

data, to the extent necessary to give the Lenders a true and accurate knowledge

of the subject matter in all material respects.  All projections with respect to the Borrower or any Consolidated

Subsidiary, or, to the knowledge of the Borrower, any Subsidiary, furnished by

the Borrower, were prepared and presented in good faith by the Borrower based

upon facts and assumptions that the Borrower believed to be reasonable in light

of current and foreseeable conditions, it being understood that projections are

subject to significant uncertainties and contingencies, many of which are

beyond the control of the Borrower and that no assurance can be given that the

financial results set forth in such projections will actually be realized and

the Borrower shall be under no obligation to update such projections.  No document furnished or statement made in

writing to the Lenders by or on behalf of the Borrower in connection with the

negotiation, preparation or execution of this Agreement and no SEC Report

contains any untrue statement of a material fact, or omits to state any such

material fact necessary in order to make the statements contained therein not

misleading, in either case which has not been corrected, supplemented or

remedied by subsequent documents furnished or statements made in writing to the

Lenders.




 




3.20         Leaseholds,

Permits, etc.    The Borrower

possesses or has the right to use, all leaseholds, easements, franchises and

permits and all authorizations and other




 




52





























 




rights which are material to

and necessary for the conduct of the Business and its business.  All the foregoing are in full force and

effect, and each of the Borrower and the Subsidiaries is in substantial

compliance with the foregoing without any known conflict with the valid rights

of others, except for such noncompliance with the foregoing which could not

reasonably be expected to have a Material Adverse Effect.  No event has occurred which permits, or

after notice or lapse of time or both would permit, the revocation or

termination of any such leasehold, easement, franchise, license or other right,

which termination or revocation, considered as a whole, could reasonably be

expected to have a Material Adverse Effect.




 




3.21         No Restrictive Covenants.     No Subsidiary, including the Company, of

the Borrower is party to, or otherwise bound by, any agreement or other

arrangement that prohibits such Subsidiary from making any payments, directly

or indirectly, to the Borrower, by way of dividends, advances, repayment of

loans or advances, reimbursements of management or other intercompany charges,

expenses and accruals or other returns on investment, or any other agreement or

arrangement that restricts the ability of such Subsidiary to make any payment,

directly or indirectly, to the Borrower, other than prohibitions and

restrictions permitted to exist under Section 6.12.




 




3.22         Solvency.     The Borrower is solvent, is able to pay

its debts as they mature, owns property with fair saleable value greater than

the amount required to pay its debts and has capital sufficient to carry on its

business as then constituted.




 




3.23         Index Debt Rating.     On the Closing Date, the Borrower has (a)

a rating for Index Debt established by Moody’s of not less than Baa2 and by

Standard & Poor’s of not less than BBB and (b) a rating for senior

unsecured short-term debt (without third party credit enhancement) established

by Moody’s of not less than P-2 and by Standard & Poor’s of not less than

A-2 (and no such rating is on credit watch with negative implications).




 




3.24         Acquisition Agreement; Merger.     (a)  

On and as of the Closing Date, (i) each of the representations and

warranties of the Borrower made in the Acquisition Agreement are true and

correct in all material respects, (ii) the Borrower and, to the knowledge of

the Borrower, the Seller and MPC, have performed and complied with, in all

material respects, the agreements, covenants and obligations required by the

Acquisition Agreement to be so performed or complied with by each of them at or

before the Closing (as defined in the Acquisition Agreement), (iii) no Order or

Law (as such terms are defined in the Acquisition Agreement) is in effect

restraining, enjoining or otherwise prohibiting or making illegal the

consummation of any of the transactions contemplated by the Acquisition

Agreement, (iv) all consents (or, solely in the case of consents referred to

below in Sections 6.06 or 7.06 of the Disclosure Schedule, in lieu thereof

waivers), approvals, actions, filings and notices set forth in Schedules 3.03

and 3.04 of the Acquisition Agreement and Sections 2.06, 2.07, 6.06 and 7.06 of

the Disclosure Schedule to the Acquisition Agreement have been duly obtained, made

or given, and are in full force and effect, (v) all rights and obligations

under the Contracts (as defined in the Acquisition Agreement) listed on

Schedule 6.08 to the Acquisition Agreement have been duly and validly assigned

to the Company or the subsidiaries of




 




53





























 




MPC and any required third

party consents have been obtained, (vi) all Benefit Plans (as defined in the

Acquisition Agreement) listed on Schedule 6.09 of the Disclosure Schedule to

the Acquisition Agreement have been terminated or assigned to the Seller in a

manner satisfactory to the Borrower, (vii) no other consent, approval, waiver,

filing, termination, assignment or other action (whether by MPC, the Seller,

the Borrower, any of their respective Subsidiaries, any Governmental Authority

or any other Person) is required in order to consummate the Acquisition in

accordance with the terms of the Acquisition Agreement and the Requirements of

Law which has not been obtained, filed or taken or which is no longer in full

force and effect and (viii) the Acquisition has been consummated (and the

Closing has occurred) in accordance with the terms of the Acquisition Agreement

and the Borrower has acquired all of the right, title and interest in and to the

Units free of any Lien or adverse claim.




 




(b)           To the knowledge of the Borrower, on

and as of the Closing Date (except to extent made therein only as of an earlier

specified date, in which case, on and as of such earlier date), each of the

representations and warranties of the Seller and MPC made in the Acquisition

Agreement are true and correct in all respects except for such failures of

representations and warranties to be true and correct (without regard to any

materiality qualifier therein) that, individually or in the aggregate, could

not result in a material adverse effect to the Business or Condition (as such

terms are defined in the Acquisition Agreement) of MPC and the Company.




 




3.25         Subsidiaries.   Set forth on Schedule 3.25(a) are

all of the Material Subsidiaries of the Borrower, which schedule correctly sets

forth, as of the date hereof, the percentage ownership (direct and indirect) of

the Borrower in each class of capital stock or other equity interests of each

of its Material Subsidiaries and also identifies the direct owner thereof. Set

forth on Schedule 3.25(b) are all of the Material Subsidiaries of the

Borrower after giving effect to the Acquisition, which schedule correctly sets

forth, as of the Closing Date, the percentage ownership (direct and indirect)

of the Borrower in each class of capital stock or other equity interests of

each of its Material Subsidiaries and also identifies the direct owner

thereof.  All outstanding shares of

capital stock of each Subsidiary of the Borrower has been duly and validly

issued, are fully paid and non-assessable and have been issued free of any

preemptive rights.  No Material

Subsidiary of the Borrower has outstanding any securities convertible into or

exchangeable for its Capital Stock or outstanding any right to subscribe for or

to purchase, or any options or warrants for the purchase or, or any agreement

providing for the issuance (contingent or otherwise) of or any calls,

commitments or claims of any character relating to, its Capital Stock or any stock

appreciation or similar rights.




 




ARTICLE

4.   CONDITIONS PRECEDENT




 




4.1  Conditions to Initial Loans.     The agreement of each Lender to make or

participate in any extension of credit hereunder requested to be made by it on

the Closing Date is subject to the satisfaction, immediately prior to or

concurrently with the making of such extension of credit on the Closing Date,

of the following conditions precedent:




 




54





























 




(a)  Documents.   The Administrative Agent shall have received each of the

following documents, each of which shall be satisfactory to the Administrative

Agent (and to the extent specified below, to each Lender) in form and

substance:




 




(i)       Executed

Counterparts.   From each party

hereto and thereto either (i) multiple counterparts of this Agreement and each

other Loan Document (other than the Notes of which there shall only be one

original), signed on behalf of such party or (ii) written evidence satisfactory

to the Administrative Agent (which may include telecopy transmission of a

signed signature page to this Agreement and each other Loan Document) that such

party has signed a counterpart of this Agreement and such other Loan Document,

and all documentation necessary and appropriate to convey a valid and perfected

first-priority security interest in the Collateral, as more specifically

enumerated in the Pledge Agreement, each executed by a duly authorized officer

of the Borrower;




 




(ii)      Corporate

Documents.   Such documents and

certificates as the Administrative Agent or its counsel may reasonably request,

certified as of the Closing Date as complete and correct copies thereof by the

Secretary or an Assistant Secretary of the Borrower, relating to (i) the

organization, existence and good standing of the Borrower, (ii) the

authorization of the execution, delivery and performance by the Borrower of

this Agreement, and of the borrowings hereunder by the Borrower, and (iii)

certificates as to the incumbency and signature of each individual signing this

Agreement and any other agreement or document contemplated hereby on behalf of

the Borrower;




 




(iii)     Financial

Statements.   Copies of (i) the

audited consolidated balance sheets of the Borrower and its Consolidated

Subsidiaries as of December 31, 2000, and the related audited statement of

earnings and cash flows for the period ending as of such date, and (ii) the

unaudited consolidated balance sheets of the Borrower and its Consolidated

Subsidiaries as of September 30, 2001, and the related unaudited statement of

earnings and cash flows for the period ending as of such date, and the related

unaudited statement of earnings and cash flows for the period ending as of such

date, respectively;




 




(iv)     Acquisition

Agreement.   A certified copy of the

Acquisition Agreement (and any amendments to the originally filed statements or

executed agreement, as applicable, shall be in form and substance satisfactory

to the Administrative Agent and the Lenders);




 




(v)      Application

for Exemption under Section 3(a)(3).  

The application on Form U-1 seeking an exemption under Section 3(a)(3)

of the Public Utility Holding Company Act of 1935 referred to in Section 3.15,

shall be in form and substance satisfactory to the Administrative Agent and the

Lenders; and




 




55





























 




(vi)     Other

Documents.   Such other documents as

the Administrative Agent or any Lender or special New York counsel to CSFB may

reasonably request.




 




(b)  Consents, Licenses and Approvals.   The Administrative Agent shall have received,

with a counterpart for each Lender, a certificate of a Responsible Officer of

the Borrower (i) attaching copies of all consents, authorizations and filings

referred to in Schedule 3.4, including without limitation, the order of

the FERC referred to in item 1 thereof, and (ii) stating that, except as shown

in Schedule 3.4, such consents, licenses and filings are in full force and

effect; and each such consent, authorization and filing shall be in form and

substance satisfactory to the Administrative Agent.  Without

limiting the foregoing, any consents, filings, approvals or notices set forth

on Schedule 3.15 (or which are necessary or advisable as a result of the

facts or circumstances set forth on such schedule) shall have been obtained or

made, as applicable, shall be in full force and effect and shall be in form and

substance satisfactory to the Administrative Agent.




 




(c)  Closing Fees and Expenses.   The Administrative Agent previously shall

have received the fees to be received on the Closing Date referred to in the

Fee Letter and shall have received reimbursement of all costs and expenses

(including the fees and expenses of counsel to the Administrative Agent).




 




(d)  Legal Opinions.   The Administrative Agent shall have

received, with a counterpart for each Lender, the executed legal opinions of

counsel to the Borrower, which opinions shall be satisfactory in form and

substance to the Administrative Agent.




 




(e)  Closing Certificate.   The Administrative Agent shall have

received, with a counterpart for each Lender, a closing certificate of the

Borrower substantially in the form of Exhibit C, dated as of the Closing

Date and satisfactory in form and substance to the Administrative Agent.




 




(f)  Insurance.   The Administrative Agent shall have received evidence

satisfactory to it of the existence of the insurance required hereunder.




 




(g)  Compliance Certificate.   The Administrative Agent shall have

received, with a counterpart for each Lender, a Compliance Certificate

substantially in the form of Exhibit E executed by a Chief Financial

Officer or Treasurer of the Borrower, dated as of the Closing Date and

satisfactory in form and substance to the Administrative Agent.




 




(h)  No Material Adverse Effect.   Since December 31, 2000, there shall have

been no development or event which, singly or in the aggregate, could

reasonably be expected to have a Material Adverse Effect.




 




(i)  Index Debt Rating.   The Administrative Agent shall have

received written confirmation (i) from Standard & Poor’s that, immediately

after consummation of the Acquisition, Index Debt will be rated at least BBB by

Standard & Poor’s and senior unsecured short-term debt of the Borrower

(without third party credit enhancement) will be rated at least A-2 by Standard

& Poor’s, and (ii) from Moody’s that, immediately after




 




56





























 




consummation of the

Acquisition, Index Debt will be rated at least Baa2 by Moody’s and senior

unsecured short-term debt of the Borrower (without third party credit enhancement)

will be rated at least P-2 by Moody’s.




 




(j)  Pro Forma Financials.   The

Administrative Agent shall have received, with a copy for each Lender,  pro forma balance sheets as of the end of

the fiscal quarter immediately preceding the Closing Date and pro forma

statements of operations and cash flows for the immediately preceding fiscal

year of the Borrower and its Consolidated Subsidiaries and for the period from

the end of such fiscal year to the end of the fiscal quarter immediately

preceding the Closing Date, (i) giving effect to the Transactions and (ii)

demonstrating that, had consummation of the Acquisition occurred on the first

day of the immediately preceding fiscal year of the Borrower, each of the

financial covenants set forth in Section 6.1 would have been satisfied

as at the end of such fiscal year and at the end of each succeeding fiscal

quarter ending on or before the Closing Date, certified by the chief financial

officer or treasurer of the Borrower.




 




(k)  Termination

of Prior 364-Day Credit Agreement.   The Administrative Agent shall have

received evidence, satisfactory to it, that the Credit Agreement dated as of

June 10, 1999 among the Borrower, the lenders party thereto and Canadian

Imperial Bank of Commerce as agent shall have been terminated and all

indebtedness, liabilities, and obligations thereunder shall have been paid in

full.




 




(l)  Acquisition.   The

Administrative Agent shall have received evidence, satisfactory to each of the

Co-Arrangers, that substantially concurrent with the making of the Initial

Loans, (i) the Restructuring (as defined in the Acquisition Agreement)

shall have been consummated in all material respects in accordance with the

terms of the Acquisition Agreement, (ii) all conditions precedent to the

Closing (as defined in the Acquisition Agreement) set forth in the Acquisition

Agreement shall have been satisfied and (iii) the Borrower shall have received

beneficial and legal title to the Units (as defined in the Acquisition

Agreement).




 




(m) Outside Closing Date.   The

Closing Date shall have occurred and each of conditions precedent set forth

above and in Section 4.2 shall have been satisfied on or prior to March

31, 2002.




 




4.2 Conditions

to Each Extension of Credit.   The agreement of each Lender to make any

Loan other than Loans constituting an interest rate conversion, continuation or

rollover of a pre-existing Loan requested to be made by it on any date and the

agreement of the Issuing Lender to issue, amend, renew or extend (and each

Lender to participate in) any Letter of Credit (the making of any such Loan or

the issuance, amendment, renewal or extension of (and the participation in) any

such Letter of Credit, a “Credit Event”) is subject to the satisfaction

of the following conditions precedent:




 




(a)  Representations and Warranties.   Each of the representations and warranties

made by the Borrower in or pursuant to the Loan Documents (except to the extent

applicable to an earlier date) shall be true and correct in all material

respects on 




 




57





























 




and as of such date as if made

on and as of such date (both before and after giving effect to such Credit

Event).




 




(b)  No Default.   No Default or Event of Default shall have occurred and be

continuing on such date or after giving effect to such Credit Event requested

to be made on such date.




 




(c)  Additional Matters.   All corporate and other proceedings, and

all documents, instruments and other legal matters in connection with the

Transactions and the other transactions contemplated by this Agreement, the

other Loan Documents and the Acquisition Agreement shall be reasonably

satisfactory in form and substance to the Administrative Agent, and the

Administrative Agent shall have received such other documents, instruments and

legal opinions in respect of any aspect or consequence of the Transactions and

the other transactions contemplated hereby or thereby as it shall reasonably

request.




 




Each Credit Event shall

constitute a representation and warranty by the Borrower as of the date of such

Credit Event that the statements in any document delivered by the Borrower in

connection with such borrowing are true and correct and that the conditions

contained in this Section 4.2 have been satisfied.




 




(d)  Additional Conditions to Letters of

Credit.   If the issuance of a

Letter of Credit is requested pursuant to Sections 2.1 and 2.3,

all conditions set forth therein with respect to the issuance of a Letter of

Credit shall have been satisfied




 




(e)  Additional Conditions to Swingline Loans.

  If a Swingline Loan is requested

pursuant to Sections 2.1 and 2.3, all conditions set forth

therein with respect to Swingline Loans shall have been satisfied.




 




ARTICLE

5.   AFFIRMATIVE COVENANTS




 




The Borrower

hereby agrees that, from and after the Closing Date and thereafter for so long

as any of the Commitments remains in effect, any Note remains outstanding and

unpaid or any Obligation is owing to any Lender, the Issuing Lender, the

Collateral Agent or the Administrative Agent hereunder or under any other Loan

Document, the Borrower shall and shall cause each of its Subsidiaries to:




 




5.1  Financial Statements.   Furnish to each Lender:




 




(a)  as soon as available, but in any event

within 90 days after the end of each fiscal year of the Borrower, a copy of the

consolidated balance sheet of the Borrower and the Consolidated Subsidiaries as

at the end of such year and the related consolidated and consolidating

statements of income, retained earnings and cash flows for such year, setting

forth in each case in comparative form the figures as of the end of and for the

previous year, reported on without a “going concern” or like qualification or

exception, or qualification arising out of the scope of the audit, by Arthur

Andersen LLP or other independent certified public accountants of nationally

recognized standing;




 




58





























 




provided

that the submission of the Borrower’s report on Form 10-K shall satisfy the

foregoing requirements; and




 




(b)  as soon as available, but in any event not

later than 45 days after the end of each quarterly period for each of the

fiscal quarters of each fiscal year of the Borrower, the unaudited consolidated

balance sheet of the Borrower and the Consolidated Subsidiaries as at the end of

such quarter and the related unaudited consolidated statements of income,

retained earnings and cash flows of the Borrower and the Subsidiaries for such

quarter and the portion of the fiscal year through the end of such quarter and

setting forth the actual figures for the corresponding date or period in the

previous year, certified by the chief financial officer or treasurer of the

Borrower as being fairly stated in all material respects (subject to normal

year-end audit adjustments); provided that the submission of the

Borrower’s report on Form 10-Q shall satisfy the foregoing requirements,




 




all such financial statements

shall be complete and correct in all material respects and shall be prepared in

reasonable detail and in accordance with GAAP applied consistently throughout

the periods reflected therein and with prior periods (except as approved by

such accountants or officer, as the case may be, and disclosed therein).




 




5.2  Certificates; Other Information.   Furnish to each Lender:




 




(a)  concurrently with the delivery of the

financial statements referred to in Section 5.1(a), a certificate of the

independent certified public accountants reporting on such financial statements

stating that in making the examination necessary therefor no knowledge was

obtained of any Default or Event of Default, except as specified in such

certificate;




 




(b)  concurrently with the delivery of the

financial statements referred to in Section 5.1(a) or (b), a compliance

certificate substantially in the form of Exhibit E of the chief

financial officer or treasurer of the Borrower (the “Compliance Certificate”),

in form and substance satisfactory to the Administrative Agent, (i) showing

compliance by the Borrower and the Subsidiaries with the covenants contained in

Section 6.1 and (ii) setting forth the description of any Reduction

Event occurring during such period and the aggregate amount of Net Cash

Proceeds received during such period with respect to any Reduction Event;




 




(c)  within 5 Business Days after the filing

thereof, copies of all reports which the Borrower sends to any of its

stockholders, and copies of all registration statements, reports on Form 10-K,

Form 10-Q or Form 8-K (or, in each case, any successor form) and other material

reports which the Borrower or any Subsidiary files with the SEC or any

successor or analogous Governmental Authority (other than public offerings of

securities under employee benefit plans or dividend reinvestment plans);




 




(d)  within five days after either of Moody’s or

Standard & Poor’s has raised or lowered its credit rating of any of the

Borrower’s long-term unsecured Debt for




 




59





























 




Borrowed Money (including any

Index Debt) a notice to the Administrative Agent as to such effect; and




 




(e)  promptly, such additional financial and

other information as the Administrative Agent or any Lender may from time to

time reasonably request.




 




5.3 Payment

and Performance of Obligations.   Perform in all material respects all of its

obligations under the terms of all material agreements, indentures, mortgages,

security agreements and other debt instruments to which it is party or bound,

including, without limitation, pay, discharge or otherwise satisfy at or before

maturity or before they become delinquent, as the case may be, all taxes, fees

or other charges imposed on it or on any of its properties by any Governmental

Authority and all its other material obligations of whatever nature, except, in

each case, where the amount or validity thereof is currently being diligently

contested in good faith and reserves in conformity with GAAP with respect

thereto have been provided on the books of the Borrower or any of its

Subsidiaries, as the case may be.




 




5.4 Maintenance

of Existence.  

Renew and keep in full force and effect its corporate existence, take

all reasonable action to maintain all rights, privileges and franchises

necessary or desirable in the normal conduct of its business except to the

extent such failure to maintain could not, in the aggregate, reasonably be

expected to have a Material Adverse Effect and comply with all Contractual

Obligations and Requirements of Law except to the extent that failure to comply

therewith could not, in the aggregate, be reasonably expected to have a

Material Adverse Effect.




 




5.5 Maintenance

of Property; Insurance.   Keep all property useful and necessary in its business in good

working order and condition (ordinary wear and tear, and casualties, excepted),

maintain with financially sound and reputable insurance companies insurance on

all its property in at least such amounts and against at least such risks as

are usually insured against in the same general area by companies engaged in

the same or a similar business, and furnish to each Lender, upon request, full

information as to the insurance carried including certified copies of policies

and certificates of insurance from a recognized insurance broker reasonably

acceptable to the Required Lenders.




 




5.6 Inspection

of Property; Books and Records; Discussions.   Keep proper books of records and account,

in which full, true and correct entries in conformity with GAAP and all

Requirements of Law shall be made of all dealings and transactions in relation

to its business and activities; and permit after reasonable notice representatives

of the Administrative Agent or any Lender to visit and inspect any of its

properties and examine and make abstracts from any of its books and records at

any reasonable time and as often as may reasonably be desired, and to discuss

the business, operations, properties and financial and other condition of the

Borrower and each Subsidiary with officers and employees of the Borrower and

such Subsidiary and with their independent certified public accountants.




 




60





























 




5.7 Notices.   Within 5 days after the Borrower knows with

respect to any notice under clause (i) or within 10 days with respect to any

other notice under this Section 5.7(a), give notice to the

Administrative Agent and each Lender of:




 




(i)       the

occurrence of any Default or Event of Default;




 




(ii)      any

(i) default or event of default under any Contractual Obligation of the

Borrower or any Subsidiary, or (ii) litigation, investigation or proceeding

which may exist at any time between the Borrower or any such Subsidiary and any

Governmental Authority, which in either case, if not cured or if adversely

determined, as the case may be, could reasonably be expected to have a Material

Adverse Effect;




 




(iii)     any

material labor dispute to which the Borrower or any Subsidiary may become a

party and which involves any group of employees, any strikes or walkouts

relating to any of its plants or facilities and the expiration or termination

of any labor contract to which the Borrower or such Subsidiary is a party or by

which the Borrower or such Subsidiary is bound and which dispute could

reasonably be expected to have a Material Adverse Effect on the operations of

the Borrower or such Subsidiary.




 




Each notice pursuant to this

Section shall be accompanied by a statement of a Responsible Officer setting

forth details of the occurrence referred to therein and stating what action the

Borrower proposes to take with respect thereto.  For the purposes of this Section 5.7(a), the Borrower

shall be deemed to have knowledge when any officer of the Borrower charged with

responsibility for any matter that is the subject of such notice requirement

knows or should have known that such notice was required.




 




(b) At least

three (3) Business Days prior to such event, give notice to the Administrative

Agent and each Lender of the occurrence of any Reduction Event (i) the Net Cash

Proceeds of which are (or are scheduled to be) in excess of $5,000,000 or (ii)

together with any other concurrent or prior Reduction Event for which notice

has not been given hereunder the aggregate Net Cash Proceeds of which are (or

are scheduled to be) in excess of $10,000,000.




 




5.8 Environmental

Laws.   (a)

Comply and cause its Subsidiaries to comply in all material respects with all

applicable Environmental Laws and obtain and comply and cause its Subsidiaries

to obtain and comply in all material respects with and maintain and cause its

Subsidiaries to maintain any and all licenses, approvals, notifications,

registrations or permits required by applicable Environmental Laws except to

the extent that failure to do so could not be reasonably expected to have a

Material Adverse Effect.




 




(b) Conduct

and complete all investigations, studies, sampling and testing, and all

remedial, removal and other actions required under Environmental Laws and

promptly comply in all material respects with all lawful orders and directives

of all Governmental Authorities regarding Environmental Laws except to the

extent that the




 




61





























 




same are being contested in

good faith by appropriate proceedings and the pendency of such proceedings

could not be reasonably expected to have a Material Adverse Effect.




 




(c) Defend,

indemnify and hold harmless the Administrative Agent, the Collateral Agent, the

Swingline Lender, the Issuing Lender and the Lenders, and their respective

parents, subsidiaries, affiliates, employees, agents, officers and directors,

from and against any claims, demands, penalties, fines, liabilities,

settlements, damages, costs and expenses of whatever kind or nature (whether

arising under theories of negligence, strict or absolute liability, or

otherwise) known or unknown, contingent or otherwise, arising out of, or in any

way relating to the violation of, noncompliance with or liability under any

Environmental Laws in each instance occurring at, or involving the operation of

any facility by the Borrower or its Material Subsidiaries, or arising out of,

or relating to the operations of the Borrower or any Material Subsidiary, or

the Business or the Properties, applicable to the operations of the Borrower or

any Subsidiary or the Business or the Properties, or any orders, requirements

or demands of Governmental Authorities related thereto, including, without

limitation, reasonable attorney’s and consultant’s fees, investigation and

laboratory fees, response costs, court costs and litigation expenses, except to

the extent that any of the foregoing arise out of the gross negligence or

willful misconduct of the party seeking indemnification therefor.  This indemnity shall continue in full force

and effect regardless of the termination of this Agreement.




 




5.9  ERISA.   Establish, maintain and operate and cause

each of its Subsidiaries to establish, maintain and operate all Plans to comply

in all material respects with the applicable provisions of ERISA, the Code, and

all other applicable laws, and the regulations and interpretations thereunder

and the respective requirements of the governing documents for such Plans

except to the extent that failure to do so could not reasonably be expected to

have a Material Adverse Effect.




 




5.10  Use of Proceeds.   Use the proceeds of each extension of

credit hereunder solely for the purposes set forth in Section 3.16.




 




5.11  Margin

Stock.   Not permit the aggregate

value of margin stock (as defined in Regulation U) at any time owned or held by

the Borrower or any of its Subsidiaries to exceed an amount equal to 25% of the

value of all consolidated assets subject at such time to any “arrangement” (as

such term is used in the definition of “indirectly secured” in Section 221.2 of

Regulation U).




 




5.12  Maintain Ownership of the Company and the

Utility Business.   Maintain direct ownership of all of the issued and outstanding

Capital Stock of the Company (except (i) as a result of a merger of the Company

with and into the Borrower, or (ii) the Utility Business EBITDA of the assets

remaining in the Company at the time of transfer did not exceed $5 million for

the four (4) consecutive fiscal quarters immediately preceding the date of such

transfer) and, other than as permitted pursuant clauses (a), (b) or (d) of Section

6.7, maintain ownership, directly or through the Company, of all or

substantially all of the assets of the Utility Business.




 




62





























 




5.13  Amendment of Loan Documents.   Amend this Agreement and the other Loan

Documents, and execute such additional documents, as may be reasonably

requested by the Arranger, after consultation with the Borrower and prior to

completion of the successful syndication (as determined by the Arranger) of the

credit facilities provided hereby, to change the pricing, terms and structure

of such credit facilities if the Arranger determines that such changes are

advisable to ensure the successful syndication thereof.




 




5.14  Ratings.   At all times maintain ratings by both

Moody’s and Standard & Poor’s with respect to the Index Debt.




 




ARTICLE 6.   NEGATIVE COVENANTS




 




The Borrower

hereby agrees that, from and after the Closing Date and thereafter for so long

as the Commitments remain in effect, any Note remains outstanding and unpaid or

any Obligation is owing to any Lender, the Issuing Lender, the Collateral Agent

or the Administrative Agent hereunder or under any other Loan Document, the Borrower

shall not:




 




6.1  Financial Covenants.   (a) 

Minimum Net Worth.  Permit

Net Worth on the last day of any fiscal quarter of the Borrower to be less than

$350,000,000; or




 




(b)  Total Capitalization.   Permit the ratio (expressed as a

percentage) of Funded Debt to Total Capital on the last day of any fiscal

quarter of the Borrower specified below to exceed the percentage set forth

below for such quarter:




 








	

  Fiscal Quarter Ended Immediately 


  After the Closing Date:


  	

   


  	

  Percentage


  	

   


  
	

  First (1st)


  	

   


  	

  78


  	

  %


  
	

  Second (2nd)


  	

   


  	

  76


  	

  %


  
	

  Third (3rd)


  	

   


  	

  72


  	

  %


  
	

  Fourth (4th)


  	

   


  	

  70


  	

  %


  
	

  Fifth (5th)


  	

   


  	

  68


  	

  %


  










 




(c)  Utility Business’ Financial Covenant.   Permit the ratio of (i) Utility Business

EBITDA to (ii) Consolidated Recourse Interest Expense, in each case on the last

day of any fiscal quarter of the Borrower to be less than 2.00 to 1.00.




 




6.2  Limitation on Fundamental Changes.   Enter into any merger, consolidation or

amalgamation, or liquidate, wind up or dissolve itself (or suffer any

liquidation or dissolution), or convey, sell, lease, assign, transfer or

otherwise dispose of, all or substantially all its property, business or

assets, or permit the Company to do any of the foregoing, except any Person

(including the Company) may be merged or consolidated with or into the Borrower

or convey, sell, assign, or otherwise transfer all or substantially all its

property, business or assets to the Borrower; provided that (a) the

Borrower shall be the continuing or surviving corporation and (b) as of the




 




63





























 




consummation of, and after

giving effect to, such transaction, (i) the Tangible Net Worth of the Borrower

shall be equal to or greater than the Tangible Net Worth of the Borrower

immediately prior to such transaction; and (ii) Standard & Poor’s and

Moody’s, or any successor agency providing ratings on the long-term unsecured

debt obligations of the Borrower, shall either (x) have affirmed their

respective ratings on such Indebtedness or (y) not have placed the Borrower on

“credit watch” as a result of or with respect to such merger or consolidation.




 




6.3  Limitation on Transactions with

Affiliates.  

Except as described on Schedule 6.3 and except for transactions

providing services (including, without limitation, group purchases of equipment

or energy) at cost to any Subsidiary, enter into, and shall not permit the

Company to enter into, any transaction, including, without limitation, any

purchase, sale, lease or exchange of property or the rendering of any service,

with any Affiliate unless such transaction is upon fair and reasonable terms no

less favorable to the Borrower or, if the Borrower is not party to such

transaction, the Company, than it would have obtain in a comparable arm’s

length transaction with a Person which is not an Affiliate.




 




6.4  Limitation on Liens.   Create, incur, assume or suffer to exist,

and shall not permit any Subsidiary to create, incur, assume or suffer to

exist, any Lien upon any of its properties, assets or revenues, whether now

owned or hereafter acquired, except for Permitted Liens.  In the event that any assets of the Borrower

that are subject to any “arrangement” (as such term is used in the definition

of “indirectly secured” in Section 221.2 of Regulation U) hereunder constitute

“margin stock” ( as defined in Regulation U), such arrangement shall not apply

to such margin stock to the extent that the value of such margin stock exceeds

25% of the value of all assets subject to such arrangement.




 




6.5  Amendments of Acquisition Agreement and

Organizational Documents.   (a) Amend, waive or terminate, or permit

any amendment, waiver or termination of, the Acquisition Agreement or any

document entered into in connection therewith that materially adversely affects

(i) the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the

Borrower or any of its Subsidiaries to perform their respective obligations

under the Acquisition Agreement or (iii) the rights and remedies of the

Lenders; or (b) amend, modify or change its articles of incorporation or bylaws

that could reasonably be expected to result in a Material Adverse Effect.




 




6.6  Limitation on Guarantee Obligations.   Create, incur, assume or suffer to exist,

and shall not permit any Subsidiary to create, incur, assume or suffer to

exist, any Guarantee Obligation except:




 




(a)           guarantees of

obligations to third parties made in the ordinary course of business in

connection with relocation of employees of the Borrower or any of its

Subsidiaries;




 




(b)           guarantees not

otherwise permitted by this Section 6.6 by the Borrower and its

Subsidiaries incurred in the ordinary course of business for an aggregate

amount not to exceed $200,000,000 at any one time;




 




64





























 




(c)           Guarantee Obligations existing on the

date hereof and described in Schedule 6.6;




 




(d)           Guarantee

Obligations which by their terms (either mandatorily or at the unfettered

option of the Borrower) are payable solely in Capital Stock (other than

Mandatory Redeemable Stock) of the Borrower provided that the Borrower agrees

to cause any payment under any such outstanding obligation to be made only in

such Capital Stock; and




 




(e)           (x) guarantees by

the Borrower or the Company of the Company’s or the Borrower’s Indebtedness and

other obligations, as applicable, (y) guarantees by the Borrower or the Company

of obligations (other than Indebtedness) of any other Subsidiaries, and (z)

guarantees by Subsidiaries (other than the Company) of Indebtedness and other

obligations of other Subsidiaries and the Borrower, in each case as permitted

under this Agreement.




 




6.7  Limitation on Sale of Assets.   Convey, sell, lease, assign, transfer or

otherwise dispose of, and shall not permit any Subsidiary (other than any

Special Purpose Subsidiary) to convey, sell, lease, assign, transfer or

otherwise dispose of any of, its property, business or assets (including,

without limitation, tax benefits, receivables and leasehold interests but

excluding the Capital Stock of any Special Purpose Subsidiary), whether now

owned or hereafter acquired except (a) for the sale or other disposition

of any property that, in the reasonable judgment of the Borrower, has become

uneconomic, obsolete or worn out, and which is disposed of in the ordinary

course of business; (b) for sales of inventory and receivables made in the

ordinary course of business; (c) that any Subsidiary of the Borrower may

sell, lease, transfer or otherwise dispose of any or all of its assets (upon

voluntary liquidation or otherwise) to the Borrower or, subject to Section

5.12, a Wholly-Owned Subsidiary of the Borrower and any Subsidiary of the

Borrower may sell or otherwise dispose of, or part with control of any or all

of, the stock of any Subsidiary to a Wholly-Owned Subsidiary of the Borrower or

a Subsidiary of the Borrower may merge with the Borrower (so long as the

Borrower is the surviving corporation) or, subject to Section 5.12,

another Subsidiary; and (d) for the sale or other disposition by the

Borrower or any of its Subsidiaries of other assets consummated after the date

hereof, provided that (i) such sale or other disposition shall be

made for fair value on an arm’s-length basis, (ii) the aggregate fair

market value of all such assets sold or disposed of under this clause (d)

(and the proceeds of which are not reinvested within one year in similar

assets) shall not exceed 10% of the consolidated total assets of the Borrower

and its Subsidiaries as of the Closing Date and (iii) the Borrower shall comply

with Section 2.6.




 




6.8  Limitation on Investments,

Loans and Advances.   Make, and

shall not permit any Subsidiary to make, any advance, loan, extension of credit

(excluding Guarantee Obligations but including any payment by a guarantor

thereunder) or capital contribution to, or purchase any stock, bonds, notes,

debentures or other securities of, or make any other investment in, any Person

except:




 




(a)           extensions of trade credit in the

ordinary course of business;




 




65





























 




(b)           investments of the Borrower or any

Subsidiary existing on the date hereof in any Subsidiary;




 




(c)           investments of the Borrower or any

Subsidiary after the date hereof that are:




 




(i)            investments by the Borrower in any

Subsidiary or




 




                                                (ii)           acquisitions

of the capital stock of, or assets constituting a business unit of, another

Person, provided that, after giving effect to any such acquisition, the

Borrower shall be in pro forma compliance with Section 6.1 and no

Default or Event or Default shall have occurred and be continuing or shall

result therefrom,




 




provided,

that the aggregate amount of investments made pursuant to clause (i) plus

the aggregate consideration for all acquisitions (including assumed debt but

excluding any Capital Stock (other than Mandatory Redeemable Stock) of the

Borrower or any Subsidiary issued as consideration for such acquisition) made

pursuant to clause (ii) shall at no time exceed during any fiscal year

$125,000,000 per annum (excluding any dividends paid in kind on any preferred

Capital Stock, other than Mandatory Redeemable Stock);




 




(d)           the Borrower and its Subsidiaries may

invest in, acquire and hold Cash Equivalents;




 




(e)           the Borrower or any of its

Subsidiaries may make travel and entertainment advances, relocation loans and

payroll advances in the ordinary course of business to officers and employees

of the Borrower or any such Subsidiary;




 




(f)            investments of the Borrower or any

Subsidiary existing on the date hereof and described in Schedule 6.8;




 




(g)           investments in obligations arising

out of bankruptcy of customers and suppliers; and




 




(h)           investments arising out of non-cash

consideration received in connection with sales of assets as permitted by Section

6.7.




 




6.9  Limitation on Dividends and Stock

Repurchases.  

Declare, and shall not permit any Subsidiary to declare, any dividends

on any shares of any class of Capital Stock, or make, and shall not permit any

Subsidiary to make, any payment on account of, or set apart assets for a

sinking or other analogous fund for, the purchase, redemption, retirement or

other acquisition of any shares of any class of Capital Stock (including the

outstanding Capital Stock of the Borrower), whether now or hereafter

outstanding, or make any other distribution in respect thereof, either directly

or indirectly, whether in cash or property or in obligations of the Borrower or

any of its Subsidiaries (all of the foregoing being referred to herein as “Restricted

Payments”); except that:




 




66





























 




(a)           Subsidiaries may pay dividends

directly or indirectly to the Borrower or the other Subsidiaries which are

directly or indirectly Wholly-Owned by the Borrower;




 




(b)           any Subsidiary may redeem or

repurchase shares of its Capital Stock to the extent required to do so pursuant

to, and upon the terms provided in, any put agreement existing on the date

hereof between such Subsidiary and any holder of such Capital Stock; provided

that if permitted pursuant to the terms of such agreement, the sole

consideration for such Capital Stock shall be Capital Stock (other than

Mandatory Redeemable Stock) of the Borrower; and




 




(c)           the Borrower or any Subsidiary may

make Restricted Payments (other than redemption or repurchase of Capital Stock

with respect to such agreements existing as of the date hereof as set forth in

clause (b) above) on or with respect to its Capital Stock so long as, after

giving effect to such Restricted Payments, (i) no Default or Event of Default

shall have occurred and be continuing or shall result therefrom and (ii) Index

Debt shall be rated at least BBB by Standard & Poor’s and at least Baa2 by

Moody’s.




 




6.10         Limitation on Indebtedness or

Mandatory Redeemable Stock.  Create, incur, issue, assume or suffer to

exist, and shall not permit any Subsidiary to create, incur, issue, assume or

suffer to exist, any Indebtedness or Mandatory Redeemable Stock (including any

Indebtedness or Mandatory Redeemable Stock of any of its Subsidiaries), except:




 




(a)  Indebtedness of the Borrower under this

Agreement;




 




(b)  [Intentionally omitted];




 




(c)  Indebtedness consisting of reimbursement

obligations under surety, indemnity, performance, release and appeal bonds and

guarantees thereof and letters of credit required in the ordinary course of

business or in connection with the enforcement of rights or claims of the

Borrower or its Subsidiaries;




 




(d)  Debt for Borrowed Money of the Borrower or

any Subsidiary constituting a Debt Incurrence (and the Net Cash Proceeds

thereof are applied as set forth in Section 2.6(b));




 




(e)  Debt for Borrowed Money incurred by a

Special Purpose Subsidiary, to the extent that the Net Cash Proceeds thereof

are retained by a Special Purpose Subsidiary to finance (i) the development or

operation of the assets it was formed to develop or (ii) activities incidental

thereto;




 




(f)  Debt for Borrowed Money incurred by any

Subsidiary (other than the Company or a Special Purpose Subsidiary) incurred

(i) to finance working capital needs of any such entity in the ordinary course

of business (in any event excluding Restricted Payments) or (ii) to the extent

permitted hereunder, to finance Capital Expenditures (including fees and

expenses incidental to the acquisition of the assets so acquired);




 




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(g)  Indebtedness of Montana First Megawatts LLC

(or any related Special Purpose Subsidiary) in an aggregate amount not to

exceed $200,000,000, which proceeds of such Indebtedness are used to finance

construction and related costs of the Montana First Megawatts project;




 




(h)  Non-Recourse Debt of any Subsidiary (other

than the Company);




 




(i)  Financing Lease obligations, mortgage

financings, purchase money Indebtedness and industrial revenue bond issues in

respect of real property or equipment incurred by the Borrower or any

Subsidiary prior to or within 180 days after a capital expenditure in order to

finance the purchase or improvement of properties;




 




(j)  Indebtedness and Mandatory Redeemable Stock

outstanding on the date hereof as set forth on Schedule 6.10 hereto;




 




(k)  refinancings, replacements and extensions by

the obligor thereof of any Debt for Borrowed Money under clause (d) through (j)

above to the extent that the principal of the Debt for Borrowed Money so

refinanced, replaced or extended is not increased as a result thereof and the

scheduled maturity date thereof is not earlier as a result thereof (and in the

case of any refinancing or replacement of Non-Recourse Debt, after giving

effect thereto, such Indebtedness constitutes Non-Recourse Debt) and




 




(l)  Indebtedness not otherwise permitted by the

preceding clauses of this Section 6.10 not exceeding $25,000,000 in

aggregate principal amount at any one time outstanding.




 




6.11         Limitation on Sales and Leasebacks.   Enter into, and shall not permit the

Company to enter into, any arrangement with any Person providing for the leasing

by the Borrower or the Company of real or personal property, in an aggregate

amount for all such property exceeding 10% of Tangible Assets, as defined by

GAAP, of the Borrower and the Company, which has been or is to be sold or

transferred by the Borrower or the Company to such Person or to any other

Person to whom funds have been or are to be advanced by such Person on the

security of such property or rental obligations of the Borrower or the Company.




 




6.12         Limitation on Negative Pledge

Clauses; Payment Restrictions.   Enter into or suffer to exist, and shall

not permit any Subsidiary to enter into or suffer to exist, any agreement or

other consensual encumbrance or restriction which prohibits or limits the

ability of the Borrower or any of its Subsidiaries to create, incur, assume or

suffer to exist any Lien upon any of its property, assets or revenues, whether

now owned or hereafter acquired, or prohibits or limits the ability of the

Borrower or any of its Subsidiaries to make loans, payments or dividends to or

investments in, or to transfer assets to, the Borrower or any of its

Subsidiaries, other than (a) any such agreement, encumbrance or

restriction contained in this Agreement or the Pledge Agreement, (b) any

such agreement, encumbrance or restriction (including any negative pledge)

contained in any industrial revenue bonds, purchase money mortgages,

development financing, operating leases entered into in the ordinary course of

business, acquisition agreements or 




 




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Financing Leases, in each case

permitted by this Agreement (in which cases, any prohibition or limitation

shall only be effective against the assets financed, acquired or leased

thereby), (c) any such agreement, encumbrance or restriction contained in

any loan agreement or other financing document entered into with respect to

Debt for Borrowed Money of Subsidiaries (other than the Company) (other than

industrial revenue bonds, purchase money mortgages, development financing or

Financing Leases) permitted to be incurred pursuant to Section 6.10,

(d) customary provisions in any contract entered into in the ordinary

course of business (including any licensing agreement, management agreement or

franchise agreement) restricting assignments of such contract, or (e) any

agreement, encumbrance or restriction contained in any indenture or financing

document entered into with respect to the issuance of up to an aggregate

principal amount of $720 million in senior unsecured bonds of the Borrower, the

Net Cash Proceeds of which shall be applied in accordance with Section 2.6(b)

hereof.




 




6.13         Limitation on Businesses.   Enter into or engage in any business,

either directly or through any Subsidiary, except for businesses of the same

general type as those in which the Borrower and its Subsidiaries are engaged on

the date hereof or other business activities reasonably incidental or related

to any of the foregoing.




 




6.14         Limitation on Certain Prepayments

and Amendments.  

(a) Make, and shall not permit the Company to make, any optional payment

or prepayment on or redemption, defeasance or purchase of such Person’s Debt

for Borrowed Money (other than with respect to (i) Indebtedness hereunder and

(ii) any Indebtedness to the extent such Indebtedness by the terms thereof

would otherwise have become due and payable within three months of such

payment, redemption, defeasance or purchase), or (b) amend, modify or change,

or consent to any amendment, modification or change to any of the terms

relating to the payment or prepayment or principal of or interest on, any such

Indebtedness, other than any amendment, modification or change which would

extend the maturity or reduce the amount of any payment or prepayment of

principal thereof or which would reduce the rate or extend the date for payment

of interest thereon or which would not be adverse to the Lenders.




 




6.15         Limitations on Subsidiaries’ Equity

Interests.  

Permit any Subsidiary to issue any preferred Capital Stock or any

redeemable common stock unless, in either case, the issuance thereof is, and

all terms thereof are, satisfactory to the Required Lenders in their sole

discretion, other than (a) issuances of preferred Capital Stock in payment of

regularly accruing dividends on theretofore outstanding shares of such

preferred Capital Stock, (b) issuances of preferred Capital Stock issued to

and, so long as thereafter outstanding, held by the Borrower and (c) issuances

in consideration of acquisitions permitted under Section 6.8 of

preferred Capital Stock which ranks junior, as to the payment of dividends and

as to the distribution of assets upon any liquidation, dissolution or winding

up of such Subsidiary, to all preferred Capital Stock held by the Borrower in

such Subsidiary.




 




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ARTICLE

7.   EVENTS OF DEFAULT




 




7.1  Events of Default.   If any of the following events shall occur

and be continuing:




 




(a)  The Borrower shall fail to pay any principal

of any Loan or the reimbursement obligation with respect to any LOC Obligation

when due in accordance with the terms hereof; or the Borrower shall fail to pay

any interest on any Loan, or any fee or any other amount payable hereunder or

any other Loan Document, within three (3) days after any such interest, fee or

other amount becomes due in accordance with the terms thereof or hereof; or




 




(b)  Any representation or warranty made or

deemed made by the Borrower herein or in any other Loan Document or which is

contained in any certificate, document or financial or other statement

furnished by it at any time under or in connection with this Agreement or any

such other Loan Document shall prove to have been incorrect in any material

respect on or as of the date made or deemed made; or




 




(c)  The Borrower shall default in the observance

or performance of any agreement contained in Article 6 (other than Section

6.12 and Section 6.14(b)) or Section 5.7; or




 




(d)  The Borrower shall default in the observance

or performance of any other agreement contained in this Agreement or any other Loan

Document, and such default shall continue unremedied for a period of 30 days;

or




 




(e)  The Borrower or any Material Subsidiary

shall (i) default in any payment (regardless of amount) of principal of or

interest on any Indebtedness having an aggregate principal amount in excess of

$30,000,000 (other than the Notes) beyond the period of grace (not to exceed 30

days), if any, provided in the instrument or agreement under which such

Indebtedness was created or (ii) default in the observance or performance of

any other agreement or condition relating to any such Indebtedness or contained

in any instrument or agreement evidencing, securing or relating thereto, or any

other event shall occur or condition exist, the effect of which default or

other event or condition is to cause, or to permit the holder or holders of

such Indebtedness (or a trustee or Administrative Agent on behalf of such

holder or holders or beneficiary or beneficiaries) to cause, with the giving of

notice, if required, such Indebtedness to become due prior to its stated

maturity; provided that any such default by the Borrower or any Material

Subsidiary under Non-Recourse Debt will not constitute an Event of Default

unless such default also constitutes a default under other recourse Indebtedness

of the Borrower or such Subsidiary in an aggregate outstanding principal amount

of $30,000,000 or more; or




 




(f)  (i) The Borrower or any Material Subsidiary

shall commence any case, proceeding or other action (A) under any existing or

future law of any jurisdiction, domestic or foreign, relating to bankruptcy,

insolvency, reorganization or relief of debtors, seeking to have an order for

relief entered with respect to it, or seeking to




 




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adjudicate it a bankrupt or

insolvent, or seeking reorganization, arrangement, adjustment, winding-up,

liquidation, dissolution, composition or other relief with respect to it or its

debts, or (B) seeking appointment of a receiver, trustee, custodian,

conservator or other similar official for it or for all or any substantial part

of its assets, or the Borrower or any such Subsidiary shall make a general

assignment for the benefit of its creditors; or (ii) there shall be commenced

against the Borrower or any such Subsidiary any case, proceeding or other

action of a nature referred to in clause (i) above which (A) results in the

entry of an order for relief or any such adjudication or appointment or (B)

remains undismissed, undischarged or un-bonded for a period of 60 days; or

(iii) there shall be commenced against the Borrower or any such Subsidiary any

case, proceeding or other action seeking issuance of a warrant of attachment,

execution, distrait or similar process against all or any substantial part of

its assets which results in the entry of an order for any such relief which

shall not have been vacated, discharged, or stayed or bonded pending appeal

within 60 days from the entry thereof; or (iv) the Borrower or any such

Subsidiary shall take any action in furtherance of, or indicating its consent

to, approval of, or acquiescence in, any of the acts set forth in clause (i),

(ii), or (iii) above; or (v) the Borrower or any such Subsidiary shall

generally not, or shall be unable to, or shall admit in writing its inability to,

pay its debts as they become due; or




 




(g)  (i) Any Person shall engage in any

“prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of

the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as

defined in Section 302 of ERISA), whether or not waived, shall exist with

respect to any Pension Plan or any Lien in favor of the PBGC or a Plan shall

arise on the assets of the Borrower, any Subsidiary or any Commonly Controlled

Entity, (iii) a Reportable Event shall occur with respect to, or proceedings

shall commence to have a trustee appointed, or a trustee shall be appointed, to

administer or to terminate, any Pension Plan, which Reportable Event or

commencement of proceedings or appointment of a trustee is, in the reasonable

opinion of the Required Lenders, likely to result in the termination of such

plan for purposes of Title IV of ERISA, (iv) any Pension Plan shall terminate

for purposes of Title IV of ERISA, (v) the Borrower, any Subsidiary or any

Commonly Controlled Entity shall, or in the reasonable opinion of the Required

Lenders is likely to, incur any liability in connection with a withdrawal from,

or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other

event or condition shall occur or exist with respect to a Pension Plan; and in

each case in clauses (i) through (vi) above, such event or condition, together

with all other such events or conditions, if any, could reasonably be expected

to have a Material Adverse Effect; or




 




(h)  One or more judgments or decrees shall be

entered against the Borrower or any Subsidiary involving in the aggregate a

liability (to the extent not covered by third-party insurance as to which the

insurer has acknowledged coverage) of $30,000,000 or more and sufficient judgments

or decrees shall not have been vacated, discharged, stayed or bonded pending

appeal within 30 days from the entry thereof to reduce such amount to less than

$30,000,000; or




 




(i)  (x) The Pledge Agreement shall cease, for

any reason, to be in full force and effect, other than pursuant to the terms

thereof and hereof, or (y) the Lien 




 




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created thereby shall cease to

be enforceable and of the same effect as to perfection and priority purported

to be created thereby with respect to any significant portion of the

Collateral; or




 




(j)  A Change of Control shall occur;




 




then, and in any such event,

(A) if such event is an Event of Default specified in clause (i) or (ii) of

paragraph (f) above with respect to the Borrower, automatically the Commitment

shall immediately terminate and the Loans hereunder (with accrued interest

thereon) and all other amounts owing under this Agreement (including all

amounts due in respect of Letters of Credit, whether or not the beneficiaries

of the then outstanding Letters of Credit shall have presented the documents

required thereunder) and the Notes shall immediately become due and payable,

and (B) if such event is any other Event of Default, either or both of the

following actions may be taken:  (i)

with the consent of the Required Lenders, the Administrative Agent may, by

notice to the Borrower, declare the Commitments to be terminated forthwith,

whereupon the Commitments shall immediately terminate; and (ii) with the consent

of the Required Lenders, the Administrative Agent may, or upon the request of

the Required Lenders the Administrative Agent shall, by notice to the Borrower,

declare the Loans hereunder (with accrued interest thereon) and all other

amounts owing under this Agreement (including all amounts due in respect of

Letters of Credit, whether or not the beneficiaries of the then outstanding

Letters of Credit shall have presented the documents required thereunder) and

the Notes to be due and payable forthwith, whereupon the same shall immediately

become due and payable.  Except as

expressly provided above in this Section, presentment, demand, protest and all

other notices of any kind are hereby expressly waived.




 




ARTICLE

8.   THE AGENTS




 




8.1  Appointment.  Each Lender hereby irrevocably designates

and appoints CSFB as Administrative Agent and as Collateral Agent (for purposes

of this Article 8, collectively, the “Agents”), and to act as its agent

under this Agreement and the other Loan Documents.  Each such Lender irrevocably authorizes each Agent, to take such

action on its behalf under the provisions of this Agreement and the other Loan

Documents and to exercise such powers and perform such duties as are expressly

delegated to each Agent by the terms of this Agreement and the other Loan

Documents, together with such other powers as are reasonably incidental

thereto.  Each Lender further authorizes

and directs each Agent to execute and deliver releases (or similar agreements)

to give effect to the provisions of this Agreement and the other Loan

Documents, including specifically, without limitation, the provisions of Section

6.7 hereof.  Notwithstanding any

provision to the contrary elsewhere in this Agreement, no Agent shall have any

duties or responsibilities, except those expressly set forth herein or in

therein, or any fiduciary relationship with any Lender, and no implied

covenants, functions, responsibilities, duties, obligations or liabilities

shall be read into this Agreement or any other Loan Document or otherwise exist

against either Agent.  Without limiting

the generality of the foregoing, the Agents are hereby expressly authorized to

execute any and all documents (including releases) with respect to the

Collateral and the




 




72





























 




rights of the Secured Parties

with respect thereto, as contemplated by and in accordance with the provisions

of this Agreement and the Pledge Agreement.




 




8.2  Delegation of Duties.   Each Agent may execute any of its duties

under this Agreement and the other Loan Documents by or through agents or

attorneys-in-fact and shall be entitled to advice of counsel concerning all

matters pertaining to such duties.  No

Agent shall be responsible for the negligence or misconduct of any agents or

attorneys-in-fact selected by it with reasonable care.




 




8.3  Exculpatory Provisions.   No Agent nor any of its officers,

directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)

liable for any action lawfully taken or omitted to be taken by it or such

Person under or in connection with this Agreement or any other Loan Document

(except for its own gross negligence or willful misconduct) or (ii) responsible

in any manner to any of the Lenders for any recitals, statements,

representations or warranties, made by the Borrower or any officer or any of

them contained in this Agreement or any other Loan Document or in any

certificate, report, statement or other document referred to or provided for

in, or received by either Agent under or in connection with, this Agreement or

any other Loan Document or for the value, validity, effectiveness, genuineness,

enforceability or sufficiency of this Agreement or the Notes or any other Loan

Document or for any failure of the Borrower to perform its obligations hereunder

or thereunder.  No Agent shall be under

any obligation to any Lender to ascertain or to inquire as to the observance or

performance of any of the agreements contained in, or conditions of, this

Agreement or any other Loan Document, or to inspect the properties, books or

records of the Borrower or any Subsidiary.




 




8.4  Reliance by Agents.   Each Agent shall be entitled to rely, and

shall be fully protected in relying, upon any Note, writing, resolution,

notice, consent, certificate, affidavit, letter, telecopy, telex or teletype

message, statement, order or other document or conversation 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 (including,

without limitation, counsel to the Borrower), independent accountants and other

experts selected by such Agent.  Each

Agent may deem and treat the payee of any Note as the owner thereof for all

purposes unless a written notice of assignment, negotiation or transfer thereof

shall have been filed with the Administrative Agent.  Each Agent shall be fully justified in failing or refusing to

take any action under this Agreement or any other Loan Document unless it shall

first receive such advice or concurrence of the Required Lenders as it deems

appropriate or it shall first be indemnified to its satisfaction by the 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.  Each Agent shall in all cases be fully protected in acting, or in

refraining from acting, under this Agreement and the Notes and the other Loan

Documents in accordance with a request of the Required Lenders, and such

request and any action taken or failure to act pursuant thereto shall be

binding upon all the Lenders and all future holders of the Notes.




 




8.5  Notice of Default.   No Agent shall be deemed to have knowledge

or notice of the occurrence of any Default or Event of Default unless such

Agent has 




 




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received notice from a Lender

or the Borrower referring to this Agreement, describing such Default or Event

of Default and stating that such notice is a “notice of default”.  In the event that the Administrative Agent

receives such a notice, the Administrative Agent shall give notice thereof to

the Lenders.  Each Agent shall take such

action with respect to such Default or Event of Default as shall be reasonably

directed by the Required Lenders; provided that unless and until such

Agent shall have received such directions, such Agent may (but shall not be

obligated to) take such action, or refrain from taking such action, with

respect to such Default or Event of Default as it shall deem advisable in the

best interests of the Lenders.




 




8.6  Non-Reliance on Agents and Other Lenders.   Each Lender expressly acknowledges that no

Agent nor any of its officers, directors, employees, agents, attorneys-in-fact

or Affiliates has made any representations or warranties to it and that no act

by either Agent hereafter taken, including any review of the affairs of the

Borrower, shall be deemed to constitute any representation or warranty by

either Agent to any Lender.  Each Lender

represents to each Agent that it has, independently and without reliance upon

either Agent or any other Lender, and based on such documents and information

as it has deemed appropriate, made its own appraisal of and investigation into

the business, operations, property, financial and other condition and creditworthiness

of the Borrower and made its own decision to make its Loans hereunder and enter

into this Agreement.  Each Lender also

represents that it will, independently and without reliance upon either Agent 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 analysis, appraisals

and decisions in taking or not taking action under this Agreement and the other

Loan Documents, and to make such investigation as it deems necessary to inform

itself as to the business, operations, property, financial and other condition

and creditworthiness of the Borrower. 

Except for notices, reports and other documents expressly required to be

furnished to the Lenders by the Administrative Agent hereunder or furnished to

the Administrative Agent for the account of, or with a counterpart or copy for,

each Lender, no Agent shall have any duty or responsibility to provide any

Lender with any credit or other information concerning the business,

operations, property, condition (financial or otherwise), prospects or

creditworthiness of the Borrower which may come into the possession of either

Agent or any of its officers, directors, employees, agents, attorneys-in-fact

or Affiliates.




 




8.7  Indemnification.   The Lenders agree to indemnify each Agent

in its capacity as such (to the extent not reimbursed by the Borrower and

without limiting the obligation of the Borrower to do so) and their respective

directors, officers, employees and agents, ratably according to their

respective Commitment Percentages in effect on the date on which

indemnification is sought under this Section (or, if indemnification is sought

after the date upon which the Commitments shall have terminated and the Loans

shall have been paid in full, ratably in accordance with their Commitment

Percentages immediately prior to such date), from and against any and all

liabilities, obligations, losses, damages, penalties, actions, judgments,

suits, costs, expenses or disbursements of any kind whatsoever which may at any

time (including, without limitation, at any time following the payment of the

Notes) be imposed on, incurred by or asserted against such Agent in any way

relating to or arising out of this Agreement, any of the other Loan 




 




74





























 




Documents or any documents

contemplated by or referred to herein or therein or the transactions

contemplated hereby or thereby or any action taken or omitted by such Agent

under or in connection with any of the foregoing; provided that no

Lender shall be liable for the payment of any portion of such liabilities,

obligations, losses, damages, penalties, actions, judgments, suits, costs,

expenses or disbursements resulting solely from such Agent’s gross negligence

or willful misconduct.  Each Lender

having a Revolving Credit Commitment agrees to reimburse each of the Issuing

Lender and its directors, officers, employees and agents, in each case to the

same extent and subject to the same limitations as provided above for the

Agents.  The agreements in this Section

shall survive the payment of the Obligations hereunder.




 




8.8  Agent in Its Individual Capacity.   Each Agent and its Affiliates may make

loans to, accept deposits from and generally engage in any kind of business

with the Borrower and any Subsidiary as though such Agent were not an Agent

hereunder and under the other Loan Documents. 

With respect to Loans made or renewed by it and any Note issued to it,

each Agent shall have the same rights and powers under this Agreement and the

other Loan Documents as any Lender and may exercise the same as though it were

not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in

its individual capacity.




 




8.9  Successor Administrative Agent .   The

Administrative Agent may resign as Administrative Agent upon ten days’ notice

to the Lenders and the Borrower.  If the

Administrative Agent shall resign as Administrative Agent under this Agreement

and the other Loan Documents, then the Required Lenders shall, with the consent

of the Borrower (which consent shall not be unreasonably withheld and shall not

be required if an Event of Default shall have occurred that is continuing)

appoint a successor administrative agent, whereupon such successor Administrative

Agent shall succeed to the rights, powers and duties of the Administrative

Agent, and the term “Administrative Agent” shall mean such successor

Administrative Agent effective upon such appointment and approval, and the

former Administrative Agent’s rights, powers and duties as Administrative Agent

shall be terminated, without any other or further act or deed on the part of

such former Administrative Agent or any of the parties to this Agreement or any

holders of the Notes.  After any

retiring or terminated Administrative Agent’s resignation or termination, as

the case may be, as Administrative Agent, the provisions of this Section shall

inure to its benefit as to any actions taken or omitted to be taken by it while

it was Administrative Agent under this Agreement and the other Loan Documents.




 




ARTICLE

9.   MISCELLANEOUS




 




9.1  Amendments and Waivers.   Neither this Agreement, any Note or any

other Loan Document, nor any terms hereof or thereof may be amended,

supplemented or modified except in accordance with the provisions of this

Section.  The Required Lenders may, or,

with the written consent of the Required Lenders, the Administrative Agent may,

from time to time, (a) enter into with the Borrower written amendments,

supplements or modifications hereto for the purpose of adding any provisions to

this Agreement or changing in any manner the rights of the Lenders or of the

Borrower hereunder, (b) enter into with the Borrower written amendments,

supplements or 




 




75





























 




modifications to the Note and

the other Loan Documents for the purpose of adding provisions to the Notes or

such other Loan Documents or changing in any manner the rights of the Lenders

or the Borrower thereunder or (c) waive, on such terms and conditions as the

Required Lenders or the Administrative Agent, as the case may be, may specify

in such instrument, any of the requirements of this Agreement, the Notes or the

other Loan Documents or any Default or Event of Default and its consequences; provided

that no such waiver and no such amendment, supplement or modification (i) shall

reduce the amount or extend the scheduled date of maturity of the Note of any

Lender or of any installment thereof, or reduce the stated rate of any interest

or fee payable hereunder or extend the scheduled date of any payment thereof or

increase the amount or extend the expiration date of any Lender’s Commitments,

in each case, without the consent of such Lender, (ii) shall amend, modify or

waive any provision of this Section, or vary any provision of this Agreement or

any other Loan Document which specifically by its terms requires the approval

or consent of all the Lenders or reduce the percentage specified in the

definition of Required Lenders, or consent to the assignment or transfer by the

Borrower of any of its rights and obligations under this Agreement, the Notes

and the other Loan Documents, in each case, without the written consent of all

the Lenders, (iii) shall amend, modify or waive any provision of Section 2.1(c),

2.4(c), 2.4(d), 2.20 or 8.7 (to the extent relating to the Issuing Lender) or

any LOC Document without the written consent of the Issuing Lender, (iv) shall

amend, modify or waive any provision hereof relating to Swingline Loans without

the written consent of the Swingline Lender, (v) shall amend, modify or waive

any provision of Article 8 or any other provision in any Loan Document

governing the rights or obligations of the Administrative Agent or the

Collateral Agent without the written consent of the then Administrative Agent

and the Collateral Agent or (vi) shall amend, modify or waive the provisions of

Section 6.6(b) or 6.8 without the consent of Lenders having Term Commitments

(or after the Closing Date, Term Loans) and Revolving Credit Commitments (or

after the Termination Date, Revolving Credit Loans and Revolving Credit

Commitment Percentages of Swingline Loans and LOC Obligations) representing 75%

or more of the aggregate of all Term Commitments (or after the Closing Date,

Term Loans) and Revolving Credit Commitments (or after the Termination Date,

Revolving Credit Loans, Swingline Loans and LOC Obligations) in each case

outstanding at such time.  Any such

waiver and any such amendment, supplement or modification shall apply equally

to each of the Lenders and shall be binding upon the Borrower, the Lenders, the

Administrative Agent and all future holders of the Notes.  In the case of any waiver, the Borrower, the

Lenders and the Administrative Agent shall be restored to their former position

and rights hereunder and under the outstanding Notes and any other Loan

Documents, and any Default or Event of Default waived shall be deemed to be

cured and not continuing, but no such waiver shall extend to any subsequent or

other Default or Event of Default or impair any right consequent thereon.




 




9.2  Notice

.   All

notices, requests and demands to or upon the respective parties hereto to be

effective shall be in writing (including by telecopy), and, unless otherwise

expressly provided herein, shall be deemed to have been duly given or made when

delivered by hand, or, in the case of notice by mail, when received, or, in the

case of telecopy notice, when received, addressed as follows in the case of the

Borrower or the Administrative Agent, and as set forth in Schedule I in the

case of any Lender, or to such 




 




76





























 




other address as may be

hereafter notified by the respective parties hereto and any future holders of

the Notes:




 




	

  Borrower:


  	

   


  	

  Northwestern

  Corporation


  
	

   


  	

   


  	

  125 S.

  Dakota Avenue, Suite 1100


  
	

   


  	

   


  	

  Sioux Falls,

  South Dakota 57104


  
	

   


  	

   


  	

  Attention:  Chief Financial Officer


  
	

   


  	

   


  	

   


  
	

  with a copy

  to:


  	

   


  	

  Northwestern

  Corporation


  
	

   


  	

   


  	

  125 S.

  Dakota Avenue, Suite 1100


  
	

   


  	

   


  	

  Sioux Falls,

  South Dakota 57104


  
	

   


  	

   


  	

  Attention:  Eric R. Jacobsen, Vice President and

  General Counsel


  
	

   


  	

   


  	

   


  
	

  Administrative

  Agent:


  	

   


  	

  Credit

  Suisse First Boston


  
	

   


  	

   


  	

  Eleven

  Madison Avenue


  
	

   


  	

   


  	

  New York,

  New York 10010-3629


  
	

   


  	

   


  	

  Attention:  Agency Department Manager


  





 




provided

that any notice, request or demand to or upon the Administrative Agent made

under this Agreement may be made by telephone, with prompt written confirmation

thereafter of such telephonic notice, and the Administrative Agent shall be

entitled to rely on such telephonic notice; provided, further,

that any notice, request or demand to or upon the Administrative Agent and the

Lenders pursuant to Section 2.3, Section 2.5, Section 2.8,

Section 2.9, Section 2.10, or Section 2.15 shall not be

effective until received.




 




9.3  No Waiver; Cumulative Remedies.   No failure to exercise and no delay in

exercising, on the part of the Administrative Agent or any Lender, any right,

remedy, power or privilege hereunder or under the other Loan Documents shall

operate as a waiver thereof, nor shall any single or partial exercise of any

right, remedy, power or privilege hereunder preclude any other or further

exercise thereof or the exercise of any other right, remedy, power or

privilege.  The rights, remedies, powers

and privileges herein provided are cumulative and not exclusive of any rights,

remedies, powers and privileges provided by law.




 




9.4  Survival of Representations and

Warranties.  

All representations and warranties made hereunder, in the other Loan

Documents and in any document, certificate or statement delivered pursuant

hereto or in connection herewith shall survive the execution and delivery of

this Agreement and the Notes and the making of the Loans hereunder.




 




9.5  Payment of Expenses and Taxes;

Indemnification.  

The Borrower agrees (a) to pay or reimburse the Administrative Agent and

the Collateral Agent for all its reasonable out-of-pocket costs and expenses

incurred in connection with the development, preparation and execution of, and

any amendment, supplement or 




 




77





























 




modification to, this

Agreement, the Notes and the other Loan Documents and any other documents

prepared in connection herewith or therewith, and the consummation and

administration of the transactions contemplated hereby and thereby, including,

without limitation, the reasonable fees and disbursements of counsel to the

Administrative Agent and the Collateral Agent, (b) to pay or reimburse the

Administrative Agent, the Collateral Agent and each Lender for all its costs

and expenses incurred in connection with the enforcement or preservation of any

rights under this Agreement, the Notes, the other Loan Documents and any such

other documents, including, without limitation, the fees and disbursements of

counsel (including allocated costs of internal counsel) to the Administrative

Agent, the Collateral Agent and each Lender, (c) to pay, and indemnify and hold

harmless the Administrative Agent, the Collateral Agent and each Lender from,

any and all present or future stamp, documentary or excise taxes or similar

charges, any and all recording and filing fees, and any and all liabilities

with respect thereto, which may be payable or determined to be payable in

connection with the execution and delivery of, or consummation or

administration of any of the transactions contemplated by, or payment under, or

any amendment, supplement or modification of, or any waiver or consent under or

in respect of, this Agreement, the Notes, the other Loan Documents and any such

other documents, and (d) to pay, and indemnify and hold harmless the

Administrative Agent, the Collateral Agent and each Lender (including each of

their respective parents, subsidiaries, officers, directors, employees, agents

and affiliates) from and against, any and all claims, demands, liabilities, obligations,

losses, damages, penalties, actions, judgments, suits (regardless of whether

such Person is a party thereto), costs, settlements, expenses or disbursements

of whatever kind or nature arising from, in connection with or with respect to

(i) the execution, delivery, enforcement, performance and administration of

this Agreement, the Notes, the other Loan Documents, or any other documents,

(ii) the proposed or actual use of the proceeds of the Loans or (iii) the

Acquisition, any other Transaction or any transaction or document related

thereto or in connection therewith (all the foregoing in this clause (d),

collectively, the “indemnified liabilities”); provided that the

Borrower shall not have any obligation hereunder to any Lender with respect to

indemnified liabilities arising from the gross negligence or willful misconduct

of the Administrative Agent, the Collateral Agent or such Lender.  The agreements in this Section 9.5

shall survive repayment of the Obligations hereunder.




 




9.6  Successors and Assigns; Participations

and Assignments.  

(a) This Agreement shall be binding upon and inure to the benefit of the

Borrower, the Lenders, the Administrative Agent, all future holders of the

Notes and their respective successors and assigns, except that the Borrower may

not assign or transfer any of its rights or obligations under this Agreement

without the prior written consent of each Lender.




 




(b)  Any Lender may, in the ordinary course of

its commercial banking business and in accordance with applicable law, at any

time sell to one or more banks or other entities (“Participants”)

participating interests in any Loan owing to such Lender, any Note held by such

Lender, any Commitment of such Lender or any other interest hereunder and under

the other Loan Documents.  In the event

of any such sale by a Lender of a participating interest to a Participant, such

Lender’s obligations under this Agreement to the other parties to this

Agreement shall remain unchanged, such Lender shall remain solely responsible

for the performance thereof, such Lender shall remain the




 




78





























 




holder of any such Note for all

purposes under this Agreement and the other Loan Documents, the Borrower and

the Administrative Agent shall continue to deal solely and directly with such

Lender in connection with such Lender’s rights and obligations under this

Agreement and the other Loan Documents and such Lender shall retain the sole

right to enforce the obligations of the Borrower relating to the Loans and

other obligations owing to such Lender and to approve any amendment,

modification, or waiver of any provision of this Agreement (other than

amendments, modifications, or waivers (i) decreasing the amount of

principal of or the rate at which interest is payable on such Loans or Notes,

(ii) extending any scheduled principal payment date or date fixed for the

payment of interest on such Loans or Notes, (iii) extending its Commitment

or (iv) permitting any assignment or

transfer of any of the Borrower’s rights or obligations under this Agreement).  The Borrower agrees that if amounts

outstanding under this Agreement and the Notes are due or unpaid, or shall have

been declared or shall have become due and payable upon the occurrence of an

Event of Default, each Participant shall be deemed to have the right of setoff

in respect of its participating interest in amounts owing under this Agreement

and any Note to the same extent as if the amount of its participating interest

were owing directly to it as a Lender under this Agreement or any Note; provided

that, in purchasing such participating interest, such Participant shall be

deemed to have agreed to share with the Lenders the proceeds thereof as

provided in Section 9.7(a) as fully as if it were a Lender hereunder.  The Borrower also agrees that each

Participant shall be entitled to the benefits of Section 2.14, Section

2.15 and Section 2.16 with respect to its participation in the

Commitments and the Loans outstanding from time to time as if it were a Lender;

provided that, in the case of Section 2.15, such Participant

shall have complied with the requirements of said Section and provided, further,

that no Participant shall be entitled to receive any greater amount pursuant to

any such Section than the transferor Lender would have been entitled to receive

in respect of the amount of the participation transferred by such transferor

Lender to such Participant had no such transfer occurred.




 




(c)  Any Lender, in the ordinary course of its

commercial banking business and in accordance with applicable law, at any time

and from time to time may assign to any Lender or any affiliate or Approved

Fund thereof with the consent of the Administrative Agent, or, with the consent

of the Borrower (so long as no Event of Default shall have occurred which is

continuing) and the Administrative Agent (which consent, in the case of either

the Borrower or the Administrative Agent, shall not be unreasonably withheld),

to an additional bank or financial institution (an “Assignee”) all or

any part of its rights and obligations under this Agreement and the Notes

pursuant to a “Assignment and Assumption Agreement”, substantially in

the form of Exhibit D, executed by such Assignee, such assigning Lender

and, in the case of an Assignee that is not then a Lender or an affiliate or

Approved Fund thereof, by the Borrower and the Administrative Agent and

delivered to the Administrative Agent for its acceptance and recording in the

Register; provided that (i) any such assignment must be in a minimum

amount equal to the lesser of (x) $1,000,000 and (y) the aggregate Commitments

and outstanding Loans of such Lender then in effect, and (ii) after giving

effect to any such assignment, such Lender shall have either (x) sold all its

rights and obligations hereunder and under the Notes or (y) retained at least

$1,000,000 of the aggregate Commitments. 

Upon such execution, delivery, acceptance and recording, from and after

the effective 




 




79





























 




date determined pursuant to

such Assignment and Assumption Agreement, (1) the Assignee thereunder shall be

a party hereto and, to the extent provided in such Assignment and Assumption

Agreement, have the rights and obligations of a Lender hereunder with a

Commitment or Commitments as set forth therein and (2) the assigning Lender

thereunder, to the extent provided in such Assignment and Assumption Agreement,

shall be released from its obligations under this Agreement (and, in the case

of an Assignment and Assumption Agreement covering all or the remaining portion

of an assigning Lender’s rights and obligations under this Agreement, such

assigning Lender shall cease to be a party hereto; provided that the

provisions of Section 2.14, Section 2.15, Section 2.16 and

Section 9.5 shall continue to benefit such assigning Lender to the

extent required by such Sections).




 




(d)  The Administrative Agent shall maintain, at

its address referred to in Section 9.2, a copy of each Assignment and

Assumption Agreement delivered to it and a register (the “Register”) for

the recordation of the names and addresses of any Assignees and the Commitment

of, and principal amount of the Loans owing to, any Assignees from time to

time.  The entries in the Register shall

be conclusive, in the absence of manifest error, and the Borrower and the

Administrative Agent may treat each Person whose name is recorded in the

Register as the owner of the Loan recorded therein for all purposes of this

Agreement.  The Register shall be

available for inspection by the Borrower at any reasonable time and from time

to time upon reasonable prior notice.




 




(e)  Upon its receipt of an Assignment and

Assumption Agreement executed by the assigning Lender, an Assignee (and, in the

case of an Assignee that is not then a Lender or an affiliate thereof, by the

Borrower and the Administrative Agent ) and the Borrower together with payment

by the assigning Lender or by the Assignee to the Administrative Agent of a

registration and processing fee of $3,500, the Administrative Agent shall promptly

accept such Assignment and Assumption Agreement and, on the effective date

determined pursuant thereto, shall record the information contained therein in

the Register and give notice of such acceptance and recordation to the

Borrower.




 




(f)  Notwithstanding anything to the contrary

contained herein, any Lender (a “Granting Lender”) may grant to a

special purpose funding vehicle (a “SPC”), identified as such in writing

from time to time by the Granting Lender to the Administrative Agent and the

Borrower, the option to provide to the Borrower all or any part of any Loan

that such Granting Lender would otherwise be obligated to make to the Borrower

pursuant to this Agreement; provided that (i) nothing herein shall

constitute a commitment by any SPC to make any advance hereunder, (ii) if an

SPC elects not to exercise such option or otherwise fails to provide all or any

part of such Loan, the Granting Lender shall be obligated to make such Loan

pursuant to the terms hereof.  The

making of a Loan by an SPC hereunder shall utilize the applicable Commitment of

the Granting Lender to the same extent, and as if, such Loan were made by such

Granting Lender.  Each party hereto

hereby agrees that no SPC shall be liable for any indemnity or similar payment

obligation under this Agreement (all liability for which shall remain with the

Granting Lender).  In furtherance of the

foregoing, each party hereto hereby agrees (which agreement shall survive the

termination of this Agreement) that, prior to the date that is one year and one

day after the payment in full of all outstanding commercial paper 




 




80





























 




or other senior indebtedness of

any SPC, it will not institute against, or join any other person in instituting

against, such SPC any bankruptcy, reorganization, arrangement, insolvency or

liquidation proceedings under the laws of the United States or any State

thereof.  In addition, notwithstanding

anything to the contrary contained in this Section 9.6(f), any SPC may

(i) with notice to, but without the prior written consent of, the Borrower and

the Administrative Agent and without paying any processing fee therefor, assign

all or a portion of its interests in any Loans to the Granting Lender or to any

financial institutions (consented to by the Borrower and the Administrative

Agent) providing liquidity and/or credit support to or for the account of such

SPC to support the funding or maintenance of Loans and (ii) disclose on a

confidential basis any non-public information relating to its Loans to any

rating agency, commercial paper dealer or provider of any surety, guarantee or

credit or liquidity enhancement to such SPC. 

This section may not be amended without the written consent of the SPC.




 




(g)  The Borrower authorizes the Lenders to

disclose to any Participant or Assignee (each, a “Transferee”) and any

prospective Transferee, any and all financial information in the Lenders’

possession concerning the Borrower and its respective Affiliates which has been

delivered to the Administrative Agent or the Lenders by or on behalf of the

Borrower pursuant to this Agreement or which has been delivered to the

Administrative Agent or the Lenders by or on behalf of the Borrower in

connection with the Lender’s credit evaluation of the Borrower and its

respective Affiliates prior to becoming a party to this Agreement; provided

that each such Transferee and prospective Transferee agrees in writing to be

bound by the provisions of Section 9.8.




 




(h)  Nothing herein shall prohibit any Lender

from pledging or assigning any Note to any Federal Reserve Bank in accordance

with applicable law.




 




9.7  Adjustments; Setoff.   (a) If any Lender (a “Benefited Lender”)

shall at any time receive any payment of all or part of its Loans, or interest

thereon, or receive any collateral in respect thereof (whether voluntarily or

involuntarily, by setoff, pursuant to events or proceedings of the nature

referred to in Section 7.1(f), or otherwise), in a greater proportion

than any such payment to or collateral received by any other Lender, if any, in

respect of such other Lender’s Loans, or interest thereon, such Benefited

Lender shall purchase for cash from the other Lenders a participating interest

in such portion of each such other Lender’s Loans, or shall provide such other

Lenders with the benefits of any such collateral, or the proceeds thereof, as

shall be necessary to cause such Benefited Lender to share the excess payment

or benefits of such collateral or proceeds ratably with each of the Lenders; provided

that if all or any portion of such excess payment or benefits is thereafter

recovered from such Benefited Lender, such purchase shall be rescinded, and the

purchase price and benefits returned, to the extent of such recovery, but

without interest.




 




(b)  Upon the occurrence and during the

continuance of an Event of Default, in addition to any rights and remedies of

the Lenders provided by law, each Lender shall have the right, (without prior

notice to the Borrower, any such notice being expressly waived by the Borrower

to the extent permitted by applicable law), upon any amount becoming due and

payable by the Borrower hereunder or under the Notes 




 




81





























 




(whether at the stated

maturity, by acceleration or otherwise), to setoff and appropriate and apply

against such amount any and all deposits (general or special, time or demand,

provisional or final), in any currency, and any other credits, indebtedness or

claims, in any currency, in each case whether direct or indirect, absolute or

contingent, matured or unmatured, at any time held or owing by such Lender or

any branch or agency thereof to or for the credit or the account of the

Borrower.  Each Lender agrees promptly

to notify the Borrower and the Administrative Agent after any such setoff and

application made by such Lender; provided that the failure to give such

notice shall not affect the validity of such setoff and application.




 




9.8  Confidentiality.   Each Lender agrees to exercise all

reasonable efforts (consistent with its customary methods for keeping

information confidential) to keep any information delivered or made available

by the Borrower confidential from anyone other than persons employed or

retained by such Lender who are or are expected to become engaged in

evaluating, approving, structuring or administering the Loans; provided

that nothing herein shall prevent any Lender from disclosing such information

(a) to any Affiliate of such Lender or to any other Lender, (b) upon the order

of any court or administrative agency, (c) upon the request or demand of any

regulatory agency or authority having jurisdiction over such Lender, (d) that

has been publicly disclosed, (e) in connection with any litigation relating to

the Loans, this Agreement or any transaction contemplated hereby to which any

Lender or the Administrative Agent may be a party, (f) to the extent reasonably

required in connection with the exercise of any remedy hereunder, (g) to such

Lender’s legal counsel and independent auditors, and (h) to any actual or

proposed participant or assignee of all or any part of its Loans hereunder, if

such other Person, prior to such disclosure, agrees, in writing, for the

benefit of the Borrower to comply with the provisions of this Section 9.8.




 




9.9  Effectiveness.   This

Agreement shall become effective on the date when counterparts hereof executed

on behalf of the Borrower, the Administrative Agent and each Lender shall have

been received by the Administrative Agent and notice thereof shall have been

given by the Administrative Agent to the Borrower.




 




9.10  Counterparts.   This Agreement may be executed by one or

more of the parties to this Agreement on any number of separate counterparts

(including by telecopy), and all said counterparts taken together shall be deemed

to constitute one and the same instrument. 

A set of the copies of this Agreement signed by all the parties shall be

lodged with each of the Borrower and the Administrative Agent.




 




9.11  Severability.   Any provision of this Agreement which is

prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,

be ineffective to the extent of such prohibition or unenforceability without

invalidating the remaining provisions hereof, and any such prohibition or

unenforceability in any jurisdiction shall not invalidate or render

unenforceable such provision in any other jurisdiction.




 




9.12  Integration.   This Agreement and the other Loan Documents

represent the agreement of the Borrower, the Administrative Agent and the

Lenders with respect to the subject matter hereof and thereof, and there are no

promises, undertakings,




 




82





























 




representations or warranties

by the Administrative Agent or any Lender relative to subject matter hereof or

thereof not expressly set forth or referred to herein or in the other Loan

Documents.




 




9.13         GOVERNING LAW.  THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND

OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT

AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE

WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF

CONFLICT OF LAWS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS

LAW OF THE STATE OF NEW YORK.




 




9.14         Submission To Jurisdiction; Waivers.   The Borrower hereby irrevocably and

unconditionally:




 




(a)  submits for itself and its property in any

legal action or proceeding relating to this Agreement and the other Loan

Documents to which it is a party, or for recognition and enforcement of any

judgment in respect thereof, to the non-exclusive general jurisdiction of the

Courts of the State of New York, the courts of the United States of America for

the Southern District of New York, and appellate courts from any thereof;




 




(b)  consents that any such action or proceeding

may be brought in such courts and waives any objection that it may now or

hereafter have to the venue of any such action or proceeding in any such court

or that such action or proceeding was brought in an inconvenient court and

agrees not to plead or claim the same;




 




(c)  agrees that service of process in any such

action or proceeding may be effected by mailing a copy thereof by registered or

certified mail (or any substantially similar form of mail), postage prepaid, to

the Borrower, as the case may be, at its address set forth in Section 8.2

or at such other address of which the Administrative Agent shall have been

notified pursuant thereto;




 




(d)  agrees that nothing contained herein shall

affect the right to effect service of process in any other manner permitted by

law or shall limit the right to sue in any other jurisdiction; and




 




(e)  waives, to the maximum extent not prohibited

by law, any right it may have to claim or recover in any legal action or

proceeding referred to in this Section any special, exemplary, punitive or

consequential damages.




 




9.15         Acknowledgments.   The Borrower hereby acknowledges that:




 




(a)  Neither the Administrative Agent nor any

Lender has any fiduciary relationship with or duty to the Borrower arising out

of or in connection with this Agreement or any of the other Loan Documents, and

the relationship between the Administrative Agent and the Lenders, on the one

hand, and the Borrower, on the other hand, in connection herewith or therewith

is solely that of creditor and debtor; and




 




83





























 




(b)  no joint venture is created hereby or by the

other Loan Documents or otherwise exists by virtue of the transactions

contemplated hereby between the Administrative Agent, the Lenders and the

Borrower.




 




9.16         Waivers of Jury Trial.   THE BORROWER, THE ADMINISTRATIVE AGENT AND

THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY

LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR ANY OTHER

LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.




 




84





























 




IN WITNESS

WHEREOF, the parties hereto have caused this Agreement to be duly executed and

delivered by their proper and duly authorized officers as of the day and year

first above written.




 




	

   


  	

  BORROWER:


  
	

   


  	

   


  	

   


  
	

   


  	

  NORTHWESTERN

  CORPORATION


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Kipp D.

  Orme


  	

   


  
	

   


  	

   


  	

  Name: Kipp

  D. Orme


  
	

   


  	

   


  	

  Title: Vice

  President - Finance & Chief Financial Officer


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Eric R.

  Jacobsen


  	

   


  
	

   


  	

   


  	

  Name: Eric

  R. Jacobsen


  
	

   


  	

   


  	

  Title: Vice

  President, General Counsel & Chief Legal Officer


  
	

   


  	

   


  	

   


  
	

   


  	

  ADMINISTRATIVE

  AGENT:


  
	

   


  	

   


  	

   


  
	

   


  	

  CREDIT

  SUISSE FIRST BOSTON


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Paul L.

  Colon


  	

   


  
	

   


  	

   


  	

  Name: Paul

  L. Colon


  
	

   


  	

   


  	

  Title: Vice

  President


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Vanessa

  Gomez


  	

   


  
	

   


  	

   


  	

  Name:

  Vanessa Gomez


  
	

   


  	

   


  	

  Title:

  Associate


  
					





 




 





























 




	

   


  	

  LENDERS:


  
	

   


  	

   


  	

   


  
	

   


  	

  CREDIT

  SUISSE FIRST BOSTON,


  
	

   


  	

   

  CAYMAN ISLANDS BRANCH


  
	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Paul L.

  Colon


  	

   


  
	

   


  	

   


  	

  Name: Paul

  L. Colon


  
	

   


  	

   


  	

  Title: Vice

  President


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Vanessa

  Gomez


  	

   


  
	

   


  	

   


  	

  Name:

  Vanessa Gomez


  
	

   


  	

   


  	

  Title:

  Associate


  
					





 




 




Signature Page to

the




Northwestern Credit

Agreement




 





























 




	

   


  	

  CIBC INC.


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ John P.

  Burke


  	

   


  
	

   


  	

   


  	

  Name: John

  P. Burke


  
	

   


  	

   


  	

  Title:

  Executive Director


  





 




 




Signature Page to

the




Northwestern Credit

Agreement




 





























 




	

   


  	

  ABN AMRO

  BANK N.V.


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Joseph

  McManus


  	

   


  
	

   


  	

   


  	

  Name: Joseph

  McManus


  
	

   


  	

   


  	

  Title: Vice

  President


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Frank

  Van Deur


  	

   


  
	

   


  	

   


  	

  Name: Frank

  Van Deur


  
	

   


  	

   


  	

  Title:

  Assistant Vice President


  





 




 




Signature Page to

the




Northwestern Credit

Agreement




 





























 




	

   


  	

  BARCLAYS

  BANK PLC


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

  /s/ Sydney

  G. Dennis


  	

   


  
	

   


  	

   


  	

  Name: Sydney

  G. Dennis


  
	

   


  	

   


  	

  Title:

  Director


  





 




 




Signature Page to

the




Northwestern Credit

Agreement




 





























 




Annex A




 




PRICING GRID




 




The

“Applicable Margin” and “Commitment Fee Rate” for any day are the respective

percentages set forth below in the applicable row under the column corresponding

to the Status that exists on such day:




 




	

  Status


  	

   


  	

  Level I


  	

   


  	

  Level II


  	

   


  	

  Level III


  	

   


  	

  Level IV


  	

   


  	

  Level V


  	

   


  	

  Level VI


  	

   


  
	

   

  Applicable Margin -


   

  Eurodollar Loans 


   

  (basis points)


  	

   


  	

  112.5


  	

   


  	

  125


  	

   


  	

  150


  	

   


  	

  175


  	

   


  	

  225


  	

   


  	

  275


  	

   


  
	

   

  Applicable Margin -


   

  Alternate Base Rate 


   

  Loans (basis points)


  	

   


  	

  0


  	

   


  	

  0


  	

   


  	

  0


  	

   


  	

  0


  	

   


  	

  0


  	

   


  	

  150


  	

   


  
	

   

  Commitment Fee Rate 


   

  (basis points)


  	

   


  	

  20


  	

   


  	

  22.5


  	

   


  	

  25


  	

   


  	

  30


  	

   


  	

  50


  	

   


  	

  50


  	

   


  





 




For purposes

of this Schedule, the following terms have the following meanings (as modified

by the provisos below):




 




“Level I

Status” exists at any date if, at such date, the Borrower’s senior unsecured

long-term debt is rated either A- or higher by S&P or A3 or higher by

Moody’s.




 




“Level II

Status” exists at any date if, at such date, the Borrower’s senior unsecured

long-term debt is rated either BBB+ or higher by S&P or Baa1 or higher by

Moody’s.




 




“Level III

Status” exists at any date if, at such date, the Borrower’s senior unsecured

long-term debt is rated either BBB or higher by S&P or Baa2 or higher by

Moody’s.




 




“Level IV

Status” exists at any date if, at such date, the Borrower’s senior unsecured

long-term debt is rated either BBB- or higher by S&P or Baa3 or higher by

Moody’s.




 




“Level V

Status” exists at any date if, at such date, the Borrower’s senior unsecured

long-term debt is rated either BB+ or higher by S&P or Ba1 or higher by

Moody’s.




 




“Level VI

Status” exists at any date if, at such date, no other Status exists.




 




“Status”

refers to the determination which of Level I Status, Level II Status, Level III

Status, Level IV Status, Level V Status or Level VI Status exists at any date.




 




The credit ratings to be

utilized for purposes of this Schedule are those assigned to the senior

unsecured long-term debt securities of the Borrower without third-party credit

enhancement and any rating assigned to any other debt security of the Borrower

shall be disregarded.  The rating in

effect at any date is that in effect at the close of business on such date.




 




Provided, if the Borrower is

split-rated and the ratings differential is one level, the higher rating will

apply.  If the Borrower is split-rated

and the differential is two levels or more, the rating at 




 





























 




the midpoint will apply.  If there is no midpoint rating, the higher

of the two intermediate ratings will apply.




 




Provided, further, Level I

Status will apply in the event that the Borrower is rated at or above either of

the Moody’s or Standard & Poor’s ratings set out in Level I Status

above.  Level VI Status will apply in

the event that the Borrower is rated below both the Moody’s and Standard &

Poor’s ratings set out in Level V Status above.




 




Notwithstanding

the foregoing, the respective percentages set forth in each Level for the

Applicable Margins (Eurodollar Loans and Alternate Base Rate Loans) for Term

Loans shall be increased by (i) 25 basis points on and after the 210th

day after the Closing Date, (ii) 50 basis points on and after the 240th

day after the Closing Date, (iii) 75 basis points on and after the 270th

day after the Closing Date, (iv) 100 basis points on and after the 300th

day after the Closing Date and (v) 125 basis points on and after the 330th

day after the Closing Date.




 




2





























 




EXHIBIT A-1




TO CREDITAGREEMENT




 




FORM OF

REVOLVING CREDIT NOTE




 








	

  $                  


  	

  New York, New York


  
	

   


  	

  [                 ], 200  


  










 




FOR VALUE

RECEIVED, the undersigned, NORTHWESTERN CORPORATION, a Delaware corporation,

with its principal place of business at 125 South Dakota Avenue, Suite 1100,

Sioux Falls, South Dakota 57104-6403 (the “Borrower”), hereby unconditionally

promises to pay to the order of                               , with a place of business at                                               

(the “Lender”), by wire transfer to the account of Credit Suisse

First Boston, as Administrative Agent (as defined in the Credit Agreement

referred to below), with [ACCOUNT BANK], ABA NO. [·],

Account No. [·], Attn: Agency, Reference: [·],

or at such other place or places and to such account or accounts as the

Administrative Agent, may direct from time to time by notice to the Borrower in

accordance with the Credit Agreement (as hereinafter defined), in lawful money

of the United States of America and in immediately available funds, the

principal amount of the lesser of (a)                    

DOLLARS ($                    ) and (b) the aggregate unpaid

principal amount of all Revolving Credit Loans (as defined in the Credit

Agreement) made by the Lender to the undersigned pursuant to the Credit

Agreement, payable, subject to the fourth paragraph hereof, on or before the

Termination Date (as defined in the Credit Agreement).




 




The Borrower

hereby unconditionally further agrees to pay interest in like money on the

unpaid principal amount hereof from time to time outstanding from the date

hereof, and to the extent permitted by applicable law, on any unpaid interest

payable hereon, from the date such interest is due hereunder, at the applicable

rates per annum and on the dates specified in Section 2.9 of the Credit

Agreement until such principal amount or interest, as applicable, is paid in

full (both before and after judgment). 

The Borrower agrees to pay costs and expenses, including reasonable

attorneys’ fees, incurred in connection with the interpretation or enforcement

of this Revolving Credit Note in accordance with the Credit Agreement.




 




The holder of

this Revolving Credit Note is authorized to record the date, Type and amount of

each Revolving Credit Loan made by the Lender pursuant to Section 2.1(b) of the

Credit Agreement, each continuation thereof, each conversion of all or a

portion thereof to another Type, the date and amount of each payment or

prepayment of principal thereof and, in the case of Eurodollar Loans, the

length of each Interest Period with respect thereto, on the schedules annexed

hereto and made a part hereof, and any such recordation shall constitute prima

facie evidence of the accuracy of the information so recorded absent

manifest error; provided that the failure of the Lender to make such

recordation (or any error in such recordation) shall not affect the obligations

of the Borrower hereunder or under the Credit Agreement.




 




3





























 




This Revolving

Credit Note is one of the Revolving Credit Notes referred to in the Credit

Agreement, dated as of January 14, 2002 (as amended, restated, supplemented or

otherwise modified from time to time, the “Credit Agreement”; terms

defined therein being used herein as defined therein), among the Borrower, the

several banks and other financial institutions parties thereto (including the

Lender), and the Administrative Agent, and is entitled to the benefits thereof

and of the other Loan Documents referred to therein, and is subject to optional

and mandatory prepayment in whole or in part as provided therein.  This Revolving Credit Note is secured as

provided in the Loan Documents. 

Reference is hereby made to the Loan Documents for a description of the

properties and assets in which a security interest has been granted, the nature

and extent of the security, the terms and conditions upon which the security

interests were granted and the rights of the holder of this Revolving Credit

Note in respect thereof.




 




Upon the

occurrence of any one or more of the Events of Default specified in the Credit

Agreement, all amounts remaining unpaid on this Revolving Credit Note shall

become, or may be declared to be, immediately due and payable all as provided

therein.




 




The Lender may

proceed against the Borrower in such manner as it deems desirable in accordance

with the Credit Agreement.  None of the

rights or remedies of the Lender hereunder are to be deemed waived or affected

by failure or delay on the part of the Lender to exercise the same.  All remedies conferred upon the Lender by

this Revolving Credit Note or any other instrument or agreement or by

applicable law, shall be cumulative and none is exclusive, and such remedies

may be exercised concurrently or consecutively at the Lender’s option.




 




All parties

now and hereafter liable with respect to this Revolving Credit Note, whether

maker, principal, surety, guarantor, endorser or otherwise, hereby waive

presentment, demand of payment, notice of protest, notice of dishonor and all

other notices of any kind.




 




THIS REVOLVING CREDIT

NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,

THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT

OF LAWS THEREOF (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF

THE STATE OF NEW YORK).




 




	

   


  	

  NORTHWESTERN CORPORATION


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

  Name:


  	

   


  
	

   


  	

   


  	

  Title:


  	

   


  





 




4





























 




Schedule A




to Revolving Credit Note




 




REVOLVING CREDIT LOANS, CONVERSIONS AND 


PAYMENTS OF EURODOLLAR LOANS




 




	

  Date


  	

   


  	

  Amount of 


  Eurodollar 


  Loans 


  Made


  	

   


  	

  Amount of 


  Alternate 


  Base Rate 


  Loans 


  Converted 


  into 


  Eurodollar 


  Loans


  	

   


  	

  Interest 


  Period and 


  Eurodollar 


  Rate with 


  Respect 


  Thereto


  	

   


  	

  Amount of 


  Eurodollar 


  Loans 


  Converted 


  into 


  Alternate 


  Base Rate 


  Loans


  	

   


  	

  Amount of 


  Principal 


  Repaid or 


  Prepaid


  	

   


  	

  Notation 


  Made by


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  





 




5





























 




Schedule B




to Revolving Credit Note




REVOLVING CREDIT LOANS, CONVERSIONS AND 


PAYMENTS OF ALTERNATE BASE RATE LOANS




 




	

  Date


  	

   


  	

  Amount of 


  Eurodollar 


  Loans 


  Made


  	

   


  	

  Amount of 


  Eurodollar 


  Loans 


  Converted 


  into 


  Alternate 


  Base Rate 


  Loans


  	

   


  	

  Interest 


  Period and 


  Eurodollar 


  Rate with 


  Respect 


  Thereto


  	

   


  	

  Amount of 


  Alternate 


  Base Rate 


  Loans 


  Converted 


  into 


  Eurodollar 


  Loans


  	

   


  	

  Amount of 


  Principal 


  Repaid or 


  Prepaid


  	

   


  	

  Notation 


  Made by


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  





 




A-1-6





























 




EXHIBIT A-2




TO CREDIT AGREEMENT




 




FORM OF TERM

NOTE




 




	

  $                   


  	

   


  	

  New York, New York


  
	

   


  	

   


  	

  [                  ], 200   


  





 




FOR VALUE

RECEIVED, the undersigned, NORTHWESTERN CORPORATION, a Delaware corporation,

with its principal place of business at 125 South Dakota Avenue, Suite 1100,

Sioux Falls, South Dakota 57104-6403 (the “Borrower”), hereby

unconditionally promises to pay to the order of                          , with a place of business at                                                    

(the “Lender”), by wire transfer to the account of Credit Suisse

First Boston, as Administrative Agent (as defined in the Credit Agreement

referred to below), with [ACCOUNT BANK], ABA NO. [·],

Account No. [·], Attn: Agency, Reference: [·],

or at such other place or places and to such account or accounts as the

Administrative Agent, may direct from time to time by notice to the Borrower in

accordance with the Credit Agreement (as hereinafter defined), in lawful money

of the United States of America and in immediately available funds, the

principal amount of the lesser of (a)      

               DOLLARS ($                      ) and (b) the aggregate

unpaid principal amount of all Term Loans (as defined in the Credit Agreement)

made by the Lender to the undersigned pursuant to the Credit Agreement,

payable, subject to the fourth paragraph hereof, on or before the Termination

Date (as defined in the Credit Agreement).




 




The Borrower

hereby unconditionally further agrees to pay interest in like money on the

unpaid principal amount hereof from time to time outstanding from the date

hereof, and, to the extent permitted by applicable law, on any unpaid interest

payable hereon, from the date such interest is due hereunder, at the applicable

rates per annum and on the dates specified in Section 2.9 of the Credit

Agreement until such principal amount and interest, as applicable, is paid in

full (both before and after judgment). 

The Borrower agrees to pay costs and expenses, including reasonable

attorneys’ fees, incurred in connection with the interpretation or enforcement

of this Term Note in accordance with the Credit Agreement.




 




This Term Note

is one of the Term Notes referred to in the Credit Agreement, dated as of

January 14, 2002 (as amended, restated, supplemented or otherwise modified from

time to time, the “Credit Agreement”; terms defined therein being used

herein as defined therein), among the Borrower, the several banks and other

financial institutions parties thereto (including the Lender), and the

Administrative Agent, and is entitled to the benefits thereof and of the other

Loan Documents referred to therein, and is subject to optional and mandatory

prepayment in whole or in part as provided therein.  This Term Note is secured as provided in the Loan Documents.  Reference is hereby made to the Loan

Documents for a description of the properties and assets in which a security

interest has been granted, the nature and extent of the security, the terms and

conditions upon which the security interests were granted and the rights of the

holder of this Term Note in respect thereof.




 




A-2-1





























 




Upon the

occurrence of any one or more of the Events of Default specified in the Credit

Agreement, all amounts remaining unpaid on this Term Note shall become, or may

be declared to be, immediately due and payable all as provided therein.




 




The Lender may

proceed against the Borrower in such manner as it deems desirable in accordance

with the Credit Agreement.  None of the

rights or remedies of the Lender hereunder are to be deemed waived or affected

by failure or delay on the part of the Lender to exercise the same.  All remedies conferred upon the Lender by

this Term Note or any other instrument or agreement or by applicable law, shall

be cumulative and none is exclusive, and such remedies may be exercised

concurrently or consecutively at the Lender’s option.




 




All parties

now and hereafter liable with respect to this Term Note, whether maker,

principal, surety, guarantor, endorser or otherwise, hereby waive presentment,

demand of payment, notice of protest, notice of dishonor and all other notices

of any kind.




 




THIS TERM NOTE SHALL

BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF

THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS

THEREOF (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE

OF NEW YORK).




 




	

   


  	

  NORTHWESTERN CORPORATION


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  





 




A-2-2





























 




 




EXHIBIT B-l




TO CREDIT AGREEMENT




 




FORM OF NOTICE

OF BORROWING




 




Date:




 




Credit Suisse First Boston,




as Administrative Agent




Eleven Madison

Street




New York, New

York 10010-3629




Attention: Agency Department

Manager




 








	

  Re:


  	

   


  	

  Credit Agreement dated as of January 14, 2002 among Northwestern

  Corporation, a Delaware corporation (the “Borrower”), the Lenders from

  time to time party thereto, and the Administrative Agent (as amended,

  restated, supplemented or otherwise modified from time to time, the “Credit

  Agreement”).


  










 




Pursuant to

Section 2.3 of the Credit Agreement, this Notice of Borrowing (“Notice”)

represents the request of the Borrower to borrow on [              ,              

] (the “Borrowing Date”) (1) 

from the Lenders the principal amount of                                DOLLARS ($                              ) in [Revolving Credit] [Term] Loans

as [Alternate Base Rate Loans] [Eurodollar Loans].




 




1.        [$                   of such Loans will be

Eurodollar Loans.]  [The initial

Interest Period for such Eurodollar Loans is requested to be a [one] [two]

[three] or [six] month period.]




 




2.        Proceeds of such Loans

are to be wire-transferred in accordance with the following wire instructions:




 








	

   


  
	

   


  
	

   


  










 




The

undersigned hereby certifies that, as of the Borrowing Date, all the applicable

conditions contained in [Sections 4.1 and 4.2](2) [Section 4.2](3) of the

Credit Agreement have been satisfied (or waived pursuant to Section 9.1 of the

Credit Agreement).




 






















(1) A Notice

of Borrowing must be received by the Administrative Agent prior to 10:00

a.m.  (New York time), (a) three (3)

Business Days prior to the requested Borrowing Date, if all or any part of the

requested Loans are to be Eurodollar Loans initially, or (b) one (1) Business

Day prior to the requested Borrowing Date otherwise.




 




(2) To be used

for Term Loans and Revolving Credit Loans made on the Closing Date.




 




B-1-1





























 




Unless

otherwise defined herein, terms defined in the Credit Agreement shall have the

same meanings in this Notice.




 




IN WITNESS

WHEREOF, the Borrower has caused this Notice to be executed and delivered by an

authorized officer this            day

of                     ,                        .




 




	

   


  	

  NORTHWESTERN

  CORPORATION


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  





 




 






















(3) To be used

for Revolving Credit Loans made after the Closing Date.




 




B-1-2





























 




EXHIBIT B-2




TO CREDIT AGREEMENT




 




FORM OF NOTICE OF REQUEST FOR LETTER OF CREDIT




 




Date:




 




Credit Suisse First Boston,




as Administrative Agent




Eleven Madison

Street




New York, New

York 10010-3629




Attention: Agency Department

Manager




 








	

  Re:


  	

   


  	

  Credit Agreement dated as of January 14, 2002 among Northwestern

  Corporation, a Delaware corporation (the “Borrower”), the Lenders from

  time to time party thereto, and the Administrative Agent (as amended, restated,

  supplemented or otherwise modified from time to time, the “Credit

  Agreement”).


  










 




Ladies and Gentlemen:




 




The undersigned hereby

irrevocably requests, pursuant to Section 2.3(c) of the Credit Agreement, that

[a] standby Letter(s) of Credit be issued as follows(1):




 




(1)           For use by:




 




(2)           Beneficiary:




 




(3)           Stated Amount of Letter of Credit:    [                             

 DOLLARS] (US$                    )




 




(4)           Date of Issuance:




 




(5)           Expiration Date:




 




                Delivery of the Letter(s) of Credit should be

made as follows: [INSTRUCTIONS]




 




The

undersigned hereby certifies that, as of the Borrowing Date, all the applicable

conditions contained in [Sections 4.1 and 4.2](2) [Section 4.2](3) of the

Credit Agreement have been satisfied (or waived pursuant to Section 9.1 of the

Credit Agreement).




 






















(1) A Notice

for Request of Letter of Credit must be received by the Administrative Agent

prior to 10:00 a.m.  (New York time),

three Business Days prior to the date of the requested issuance or extension

(or such shorter period as agreed to by the Issuing Lender).




 




(2) To be used

for Letters of Credit requested and issued on the Closing Date.




 




B-2-1





























 




Unless

otherwise defined herein, terms defined in the Credit Agreement shall have the

same meanings in this Notice of Request for Letter of Credit.




 




This Notice of

Request for Letter of Credit is in compliance with the requirements for

issuance of the Letters of Credit set forth in the Credit Agreement.




 




IN WITNESS

WHEREOF, the Borrower has caused this Notice of Request for Letter of Credit to

be executed and delivered by an authorized officer this              day of             ,             .




 




	

   


  	

  NORTHWESTERN

  CORPORATION


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  





 




 






















(3) To be used

for Letters of Credit requested and issued after the Closing Date.




 




B-2-2





























 




EXHIBIT B-3




TO CREDIT AGREEMENT




 




FORM OF NOTICE OF BORROWING FOR SWINGLINE LOANS




 




Date:




 




Credit Suisse First Boston,




as Administrative Agent




Eleven Madison

Street




New York, New

York 10010-3629




Attention: Agency Department

Manager




 








	

  Re:


  	

   


  	

  Credit Agreement dated as of January 14, 2002 among Northwestern

  Corporation, a Delaware corporation (the “Borrower”), the Lenders from

  time to time party thereto, and the Administrative Agent (as amended,

  restated, supplemented or otherwise modified from time to time, the “Credit

  Agreement”).


  










 




Ladies and Gentlemen:




 




Pursuant to Section 2.3(d) of the Credit Agreement, this Notice of

Borrowing for Swingline Loans (“Notice”) represents the request of the

Borrower to borrow on [           ,             ] (the “Borrowing Date”)(1)

from the Swingline Lender Swingline Loans in the principal amount of                                                   

DOLLARS ($                                                 ).




 




The Swingline

Loan shall mature on [                 

,                     ].




 




The

undersigned hereby certifies that, as of the Borrowing Date, all the applicable

conditions contained in [Sections 4.1 and 4.2](2) [Section 4.2](3) of the

Credit Agreement have been satisfied (or waived pursuant to Section 9.1 of the

Credit Agreement).




 




Unless

otherwise defined herein, terms defined in the Credit Agreement shall have the

same meanings in this Notice.




 




 






















(1) A Notice

of Borrowing must be received by the Administrative Agent prior to 10:00

a.m.  (New York time) on the requested

Borrowing Date.




 




(2) To be used

for Swingline Loans made on the Closing Date.




(3) To be used

for Swingline Loans made after the Closing Date.




 




B-3-1





























 




                IN WITNESS WHEREOF, the Borrower has caused

this Notice to be executed and delivered by an authorized officer this  




                 day of                     ,                          .




 




	

   


  	

  NORTHWESTERN

  CORPORATION


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  





 




B-3-2





























 




EXHIBIT B-4




TO CREDIT AGREEMENT




 




FORM OF NOTICE OF INTEREST RATE CONVERSION




 




Date:




 




Credit Suisse First Boston,




as Administrative Agent




Eleven Madison

Street




New York, New

York 10010-3629




Attention: Agency Department

Manager




 








	

  Re:


  	

   


  	

  Credit Agreement dated as of January 14, 2002 among Northwestern

  Corporation, a Delaware corporation (the “Borrower”), the Lenders from

  time to time party thereto, and the Administrative Agent (as amended,

  restated, supplemented or otherwise modified from time to time, the “Credit

  Agreement”).


  










 




Ladies and Gentlemen:




 




The Borrower

hereby gives notice pursuant to Section 2.7 of the Credit Agreement that it

requests a continuation or conversion of a [Revolving Loan](1) [Term Loan](2)

outstanding under the Credit Agreement, and in connection therewith sets forth

below the terms on which such continuation or conversion is requested to be

made; capitalized terms used and not defined herein shall have the meanings

provided in the Credit Agreement:




 




The Borrower

hereby requests that on                  

,              :(3)




 




(1)         $                  of the currently outstanding

principal amount of the [Revolving Credit] [Term] Loans originally made on                 ,                      and currently being maintained as [Alternate

Base Rate Loans] [[one] [two] [three] [six] month Eurodollar Loans](4),




 




(2)         be

[converted into] [continued as],




 






















(1) No

Revolving Credit Loans may be converted into Eurodollar Loans after the date

that is one month prior to the Termination Date.




(2) No Term

Loans may be converted into Eurodollar Loans after the date that is one month

prior to the Termination Date.




(3) Conversion

of Eurodollar Loans may be made only on the last day of the applicable Interest

Period.  A Notice of Conversion must be

received by the Administrative Agent prior to 10:00 a.m. (New York time) at

least three Business Days prior to the date of Borrower's election.




(4) Select

appropriate option.




 




B-4-1





























 




(3)         [Eurodollar

Loans having an Interest Period of [one] [two] [three] [six] months, which

Interest Period will expire on                

,               ](5) [Alternate

Base Rate Loans].




 




[In the event

that such Loans are to be converted into, or continued as, Eurodollar Loans,

the Borrower hereby certifies in accordance with Section 2.7 of the Credit

Agreement that no Default or Event of Default has occurred and is continuing as

of the date of this Notice of Interest Rate Conversion.]




 




IN WITNESS

WHEREOF, the Borrower has caused this Notice of Interest Rate Conversion to be

executed and delivered, and the certification contained herein to be made, by

an authorized officer this             

day of               ,            .




 




 




	

   


  	

  NORTHWESTERN

  CORPORATION


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  





 




 






















(5) Insert

appropriate interest rate option and, if applicable, number of months (for

Eurodollar Loans).




 




B-4-2





























 




EXHIBIT C




TO CREDIT AGREEMENT




 




 




FORM OF

CLOSING CERTIFICATE




 




NORTHWESTERN CORPORATION




 




Pursuant to

Section 4.1(e) of the Credit Agreement dated as of January 14, 2002 among

Northwestern Corporation, a Delaware corporation (the “Borrower”), the

several banks and other financial institutions from time to time parties

thereto (the “Lenders”), and Credit Suisse First Boston, as

administrative agent for the Lenders (the “Credit Agreement”; terms

defined therein shall have their defined meanings when used herein), the

undersigned hereby certifies that he is the                   of the Borrower and in such capacity further

certifies as follows:




 




1.        The representations and

warranties of the Borrower set forth in the Credit Agreement and each of the

other Loan Documents to which the Borrower is a party, are true and correct in

all material respects on and as of the date hereof.




 




2.        The Borrower has

received all documents and instruments, including all consents, authorizations

and filings, required or advisable under any Requirement of Law or Contractual

Obligation of the Borrower in connection with the execution, delivery,

performance, validity and enforceability of the Credit Agreement, Notes and

Loan Documents except as expressly set forth in each document.  I have examined Schedule 3.4 to the

Credit Agreement and attached hereto are copies of all consents, authorizations

and filings referred to in Schedule 3.4 of the Credit Agreement, which

consents, authorizations and filings are in full force and effect as of the

date hereof.




 




3.        No Default or Event of

Default has occurred and is continuing as of the date hereof or after giving

effect to the making of the Loans on the date hereof.




 




4.        There are no liquidation

or dissolution proceedings pending or to my knowledge threatened against the

Borrower, nor has any other event occurred affecting or threatening the

existence of the Borrower.




 




5.        Attached hereto as Annex

I is a true and complete copy of the Acquisition Agreement, together with

any existing amendments thereto, which is in full force and effect as of the

date hereof.




 




C-1





























 




IN WITNESS

WHEREOF, the undersigned has hereunto set his name.




 




	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  





 




Date:  [·], 200  




 




C-2





























 




EXHIBIT D




TO CREDIT AGREEMENT




 




FORM OF

ASSIGNMENT AND ASSUMPTION AGREEMENT




 




This Assignment and Assumption Agreement (the

“Assignment”) 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 Credit Agreement identified below  (as amended, the “Credit Agreement”),

receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard 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 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 Administrative Agent as contemplated

below, the interest in and to all of the Assignor’s rights and obligations

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, to the extent included in

any such facilities, letters of credit and swingline loans) (the “Assigned

Interest”).  Such sale and

assignment is without recourse to the Assignor and, except as expressly

provided in this Assignment, without representation or warranty by the

Assignor.




 




	

  1.


  	

   


  	

  Assignor:


  	

   


  	

  ______________________________


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  2.


  	

   


  	

  Assignee:


  	

   


  	

  ______________________________ [and is an Affiliate/Approved Fund

  (1)]


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  3.


  	

   


  	

  Borrower:


  	

   


  	

  Northwestern Corporation, a Delaware corporation.


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  4.


  	

   


  	

  Administrative Agent:


  	

   


  	

  Credit Suisse First Boston, as the administrative agent under the

  Credit Agreement


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  5.


  	

   


  	

  Credit Agreement:


  	

   


  	

  Credit Agreement, dated as of January 14, 2002 (as amended, restated,

  supplemented or otherwise modified from time to time, the “Credit

  Agreement”; terms defined therein being used herein as defined therein),

  among the Borrower, the several banks and other financial institutions

  parties thereto (including the Lender), and the Administrative Agent


  





 




 






















(1) Select as applicable.




 





























 




6.                                       Assigned

Interest:




 




	

  Facility

  Assigned


  	

   


  	

  Aggregate


  Amount of Commitment/Loans 


  for all Lenders


  	

   


  	

  Amount of

  Commitment/Loans Assigned


  	

   


  	

  Percentage

  Assigned of Commitment/Loans(2)


  
	

    Revolving Credit Commitment


  	

   


  	

  $


  	

   


  	

   


  	

  $


  	

   


  	

   


  	

   


  	

  %


  
	

   

  Term Loan Commitment


  	

   


  	

  $


  	

   


  	

   


  	

  $


  	

   


  	

   


  	

   


  	

  %


  





 




[Name of Assignor]




 




	

  Revised Revolving Credit Commitment Amount:


  	

   


  	

  $


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Revised Revolving Commitment Percentage:


  	

   


  	

   


  	

   


  	

  %


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  [Revised Term Loan Commitment Amount:


  	

   


  	

  $


  	

   


  	

  ]


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  [Revised Term Loan Commitment Percentage:


  	

   


  	

   


  	

   


  	

  %]


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Revised Term Loan Amount:


  	

   


  	

  $


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Fees Assigned (if any):


  	

   


  	

  $


  	

   


  	

   


  





 




[Name of Assignee]




 




	

  New Revolving Credit Commitment Amount:


  	

   


  	

  $


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  New Revolving Credit Commitment Percentage:


  	

   


  	

  $


  	

   


  	

  %


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  [New Term Loan Commitment Amount:


  	

   


  	

  $


  	

   


  	

  ]


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  [New Term Loan Commitment Percentage:


  	

   


  	

  $


  	

   


  	

  %


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Revised Term Loan Amount:


  	

   


  	

  $


  	

   


  	

   


  





 




Address for Notices

for Assignee:




 




[Address]




Attention:                                              




Telephone:                                            




Telecopy:                                              




Telephone




Confirmation:                                        




 






















(2) Set forth, to at least 9 decimals, as a

percentage of the Commitment/Loans of all Lenders thereunder.




 





























 




Eurodollar

Lending Office:




 




	

   


  
	

   


  
	

   


  





 




Domestic Lending

Office:




 




	

   


  
	

   


  
	

   


  





 




Effective Date:                          , 20        [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE

THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




 




The terms set forth in this Assignment are

hereby agreed to:




 




	

   


  	

  ASSIGNOR


  	

   


  
	

   


  	

  [NAME OF ASSIGNOR]


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  
	

   


  	

   


  
	

   


  	

  ASSIGNEE


  	

   


  
	

   


  	

  [NAME OF ASSIGNEE]


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  
					





 





























 




Consented to and Accepted:




 




	

  CREDIT SUISSE FIRST BOSTON, as


  
	

    Administrative Agent


  
	

   


  
	

  By


  	

   


  
	

   


  	

  Name:


  
	

   


  	

  Title:


  
	

   


  
	

  By


  	

   


  
	

   


  	

  Name:


  
	

   


  	

  Title:


  
	

   


  
	

  [Consented to:](3)


  
	

   


  
	

  NORTHWESTERN CORPORATION


  
	

   


  
	

  By


  	

   


  
	

   


  	

  Name:


  
	

   


  	

  Title:


  





 




 






















(3) To be added only if there is no Event of

Default occurring and in the case where the Assignee is not a Lender or an

Affiliate or Approved Fund thereof.




 





























 




ANNEX 1




 




NORTHWESTERN CORPORATION CREDIT

AGREEMENT




DATED AS OF JANUARY 14, 2002




 




STANDARD TERMS AND CONDITIONS

FOR ASSIGNMENT




AND ASSUMPTION AGREEMENT




 




1.  Representations

and Warranties.




 




1.1.  Assignor.  The Assignor (a) 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 to consummate the

transactions contemplated hereby; and (b) assumes no responsibility with

respect to (i) any statements, warranties or representations made in or in

connection with any Credit Document, (ii) the execution, legality, validity,

enforceability, genuineness, sufficiency or value of the Credit Agreement or

any other instrument or document delivered pursuant thereto, other than this

Assignment (herein collectively the “Credit 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

Credit Document or (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 Credit Document.




 




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 to consummate the transactions

contemplated hereby and to become a Lender under the Credit Agreement, (ii) it

meets all requirements of an Eligible Assignee under the Credit Agreement,

(iii) from and after the Effective Date, it shall be bound by the provisions of

the Credit Agreement and, to the extent of the Assigned Interest, shall have

the obligations of a Lender thereunder, (iv) it has received a copy of the

Credit Agreement, together with copies of the most recent financial statements

delivered pursuant to Section 3.1 thereof, as applicable, 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 to purchase the

Assigned Interest on the basis of which it has made such analysis and decision,

and (v) if it is a Foreign Lender, attached to the Assignment is any

documentation required to be delivered by it 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 Administrative

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 Credit Documents, and

(ii) it will perform in accordance with their terms all of the obligations

which by the terms of the Credit Documents are required to be performed by it

as a Lender.




 




2.  Payments.  From and after the Effective Date, the

Administrative 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 




 




D-5





























 




Effective Date and to the Assignee for amounts which have accrued from

and after the Effective Date.




 




3.  General

Provisions. This Assignment shall be binding upon, and inure to the benefit

of, the parties hereto and their respective successors and assigns.  This Assignment 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 by telecopy shall be effective as delivery of

a manually executed counterpart of this Assignment.  This Assignment shall be governed by, and construed in accordance

with, the law of the State of New York.




 





























 




EXHIBIT E




TO CREDIT




AGREEMENT




 




NORTHWESTERN CORPORATION




 




FORM OF

COMPLIANCE CERTIFICATE




 




Pursuant to

Section 5.2(b) of the Credit Agreement dated as of January 14, 2002 among

Northwestern Corporation, a Delaware corporation (the “Borrower”), the

several banks and other financial institutions from time to time party thereto

(the “Lenders”), and Credit Suisse First Boston, as Administrative Agent

for the Lenders (as amended, restated, supplemented or otherwise modified from

time to time, the “Credit Agreement”; certain defined terms are used

herein as defined therein), the undersigned hereby certifies that [he][she] is

a Responsible Officer of the Borrower and further certifies as follows:




 




1.             No Default or Event of Default has occurred and is

continuing as of the date hereof, except as set forth in this Certificate.




 




2.             As of                     

(the “Computation Date”), the Net Worth of the Borrower and its

Consolidated Subsidiaries was $                     , as computed on Attachment 1 hereto.




 




3.             The ratio of Funded Debt to Total Capital for the

immediately preceding fiscal quarter was            % as computed on Attachment 2 hereto.




 




4.             The ratio of Utility Business EBITDA to Consolidated

Recourse Interest Expense for the immediately preceding fiscal quarter was [·]:1.00

as computed on Attachment 7 hereto.




 




IN WITNESS WHEREOF, the undersigned has hereunto set [his][her] name on

this          day of          ,          .




 




	

   


  	

  NORTHWESTERN

  CORPORATION


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  





 




E-1





























 




ATTACHMENT 1




NET WORTH




 




	

  1.


  	

  Shareholders’

  equity of the Borrower and and its Consolidated Subsidiaries


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  2.


  	

  Preferred

  stock, preference stock and preferred securities of the Borrower and its

  Consolidated Subsidiaries


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  3.


  	

  Net Worth (sum of

  Item 1 and Item 2)


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  4.


  	

  Covenant Net

  Worth (as set forth in Section 6.1(a) of the Credit Agreement)


  	

   


  	

  Not less

  than $350,000,000


  





 




E-2





























 




ATTACHMENT 2




 




TOTAL CAPITALIZATION




 




	

  1.


  	

  Funded Debt (Item 4 of

  Attachment 3)


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  2.


  	

  Total

  Capital (Item

  4 of Attachment 4)


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  3.


  	

  Total

  Capitalization (Item 1 divided by Item 2)


  	

   


  	

  _____%


  
	

   


  	

   


  	

   


  	

   


  
	

  4.


  	

  Covenant

  Total Capitalization


  	

   


  	

  Not greater

  than [·]%(1)


  





 




 






















(1) Refer to Section 6.1(b) of the Credit

Agreement for applicable ratio for a specified fiscal quarter.




 




E-3





























 




ATTACHMENT 3




 




FUNDED DEBT




 




	

  1.


  	

  Indebtedness

  (Item 7

  of Attachment 5)


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  2.


  	

  Liabilities

  under Hedging Agreements (other than liabilities under interest rate caps)


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  3.


  	

  Non-Recourse

  Debt


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  4.


  	

  Funded Debt (excess of

  Item 1 over sum of Item 2 and Item 3)


  	

   


  	

  $


  	

   


  





 




E-4





























 




ATTACHMENT 4




 




TOTAL CAPITAL




 




	

  1.


  	

  Funded Debt

  (Item 4

  of Attachment 3)


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  2.


  	

  Stockholders’

  equity


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  3.


  	

  Preferred

  stock, preference stock and preferred securities of the Borrower and its

  Consolidated Subsidiaries


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  4.


  	

  Total

  Capital (sum

  of Item 1, Item 2 and Item 3)


  	

   


  	

  $


  	

   


  





 




E-5





























 




ATTACHMENT 5




 




INDEBTEDNESS (1)




 




	

  1.


  	

  Debt for

  Borrowed Money (Item 5 of Attachment 7)


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  2


  	

  Indebtedness

  for the deferred purchase of property or service (other than current trade

  liabilities incurred in the ordinary course of business and payable in

  accordance with customary practices)


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  3.


  	

  Outstanding

  reimbursement obligations under outstanding letters of credit, acceptances

  and similar obligations


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  4.


  	

  To the

  extent not included above, liabilities secured by any Lien on owned property

  even if the Borrower and/or the Consolidated Subsidiaries has not assumed or

  otherwise become liable for payment for such liabilities


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  5.


  	

  To the

  extent not included above, liabilities arising under the Hedging Agreements

  (other than interest rate caps)


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  6.


  	

  To the

  extent not included above, Guarantee Obligations


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  7.


  	

  Indebtedness

  (sum of

  Item 1, Item 2, Item 3, Item 4, Item 5 and Item 6)


  	

  $


  	

   


  





 






















(1) To be calculated on a consolidated basis.




 




E-6





























 




ATTACHMENT 6




 




UTILITY BUSINESS FINANCIAL COVENANT




 




	

  1.


  	

  Operating income(1) of the

  Utility Business


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  2.


  	

  Without duplication and to the extent reflected as a charge in the

  statement of operating income of the 


  	

   


  	

   


  	

   


  
	

   


  	

  Utility Business, depreciation and amortization(1)


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  3.


  	

  Utility Business EBITDA (sum of

  Item 1 and Item 2)


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  4.


  	

  Aggregate amount of interest

  expense of the Borrower and all Consolidated Subsidiaries


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  5.


  	

  Aggregate amount of interest

  accrued on Non-Recourse Debt


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  6.


  	

  Consolidated Recourse

  Interest Expenses (Item 4 minus Item 5)


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  7.


  	

  Ratio of Utility Business

  EBITDA (Item

  3) to Consolidated Recourse Interest Expense (Item 6)


  	

   


  	

   


  	

  [·](2):1.00


  





 






















(1) Determined in accordance with GAAP.




(2) Refer to Section 6.1(c) of the Credit

Agreement for applicable ratio for a specified fiscal quarter.




 




E-7





























 




ATTACHMENT 7




 




DEBT FOR BORROWED MONEY *




 




	

  1.


  	

  Obligations for borrowed

  money


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  2.


  	

  Obligations evidenced by

  bonds, debentures, notes or similar instruments


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  3.


  	

  Obligations under Financing

  Leases


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  4.


  	

  Obligations under synthetic leases, tax retention operating leases,

  off-balance sheet loans or other off-balance sheet financing products that,

  for tax purposes, are considered as indebtedness for borrowed money of the

  lessee but are classified as operating leases under GAAP


  	

   


  	

  $


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  
	

  5.


  	

  Debt for Borrowed Money (sum of

  Item 1, Item 2, Item 3 and Item 4)


  	

   


  	

  $


  	

   


  





 






















* To be calculated on a consolidated basis.




 




E-8





























 




EXHIBIT F




TO CREDIT AGREEMENT




 




 




FORM OF PLEDGE AGREEMENT




	

   


  





 




PLEDGE AGREEMENT




 




made by




 




NORTHWESTERN CORPORATION,




as Pledgor




 




to




 




CREDIT SUISSE FIRST BOSTON,




as Collateral Agent




 






















Dated as of February [•], 2002






















 




 




	

   


  





 




F-1





























 




TABLE OF CONTENTS




 




	

  ARTICLE I DEFINITIONS


  
	

   


  	

   


  	

   


  
	

   


  	

  Section 1.1


  	

  Defined

  Terms.


  
	

   


  	

  Section 1.2


  	

  Uniform

  Commercial Code; Additional Terms.


  
	

   


  
	

  ARTICLE II  PLEDGE AND SECURITY

  INTEREST


  
	

   


  	

   


  	

   


  
	

   


  	

  Section 2.1


  	

  Granting

  Clause.


  
	

   


  	

  Section 2.2


  	

  Security for Obligations.


  
	

   


  	

  Section 2.3


  	

  Delivery Of Certificates


  
	

   


  
	

  ARTICLE III  REPRESENTATIONS AND WARRANTIES


  
	

   


  	

   


  	

   


  
	

   


  	

  Section 3.1


  	

  Organization; Place of

  Business.


  
	

   


  	

  Section 3.2


  	

  Beneficial Ownership.


  
	

   


  	

  Section 3.3


  	

  Title; No

  Assignment to Third Parties.


  
	

   


  	

  Section 3.4


  	

  Valid Lien and

  Security Interest.


  
	

   


  	

  Section 3.5


  	

  No Other Approval Required.


  
	

   


  	

  Section 3.6


  	

  Membership Interests.


  
	

   


  	

  Section 3.7


  	

  No

  Encumbrances.


  
	

   


  
	

  ARTICLE IV  COVENANTS


  
	

   


  	

   


  	

   


  
	

   


  	

  Section 4.1


  	

  Change

  of Name, Jurisdiction of Organization or Location of Place of Business


  
	

   


  	

  Section 4.2


  	

  Performance of LLC

  Agreement


  
	

   


  	

  Section 4.3


  	

  No Impairment of Collateral


  
	

   


  	

  Section 4.4


  	

  Defense of Collateral


  
	

   


  	

  Section 4.5


  	

  Disposition of Collateral


  
	

   


  	

  Section 4.6


  	

  No

  Other Filings


  
	

   


  	

  Section 4.7


  	

  Voting

  Rights


  
	

   


  	

  Section 4.8


  	

  Distributions


  
	

   


  	

  Section 4.9


  	

  Filing of Bankruptcy

  Proceedings


  
	

   


  	

  Section

  4.10


  	

  Proceeds of Collateral


  
	

   


  
	

  ARTICLE V  PERFECTION OF SECURITY

  INTEREST 


  
	

   


  	

   


  	

   


  
	

   


  	

  Section 5.1


  	

  Continued

  Perfection Of Security Interest


  
	

   


  
	

  ARTICLE VI  RIGHTS OF

  PARTIES


  
	

   


  	

   


  	

   


  
	

   


  	

  Section 6.1


  	

  Pledgor’s

  Rights


  
	

   


  	

  Section 6.2


  	

  Obligations

  of Pledgor and Rights of Collateral Agent


  
	

   


  
	

  ARTICLE VII  REMEDIES


  
	

   


  	

   


  	

   


  
	

   


  	

  Section 7.1


  	

  Remedies of Collateral

  Agent


  





 




F-2





























 




	

   


  	

  Section 7.2


  	

  Sale

  of Collateral


  
	

   


  	

  Section 7.3


  	

  Registration of Securities


  
	

   


  	

  Section 7.4


  	

  Distributions as Collateral


  
	

   


  	

  Section 7.5


  	

  Waiver

  of Rights and Remedies Under Applicable Legal Requirements


  
	

   


  	

  Section 7.6


  	

  Compliance

  With Limitations and Restrictions; No Discount


  
	

   


  
	

  ARTICLE VIII  ATTORNEY-IN-FACT


  
	

   


  	

   


  	

   


  
	

   


  	

  Section 8.1


  	

  Collateral

  Agent Appointed Attorney-In-Fact


  
	

   


  
	

  ARTICLE IX  MISCELLANEOUS


  
	

   


  	

   


  	

   


  
	

   


  	

  Section 9.1


  	

  Indemnity and Expenses


  
	

   


  	

  Section 9.2


  	

  Security Interest Absolute


  
	

   


  	

  Section 9.3


  	

  Delivery of Collateral


  
	

   


  	

  Section 9.4


  	

  Remedies

  Cumulative; Delay Not Waiver


  
	

   


  	

  Section 9.5


  	

  Payment

  of Fees


  
	

   


  	

  Section 9.6


  	

  Information

  Concerning Collateral


  
	

   


  	

  Section 9.7


  	

  Company’s

  Consent.


  
	

   


  	

  Section 9.8


  	

  Termination of

  Security Interest.


  
	

   


  	

  Section 9.9


  	

  Expenses; Interest.


  
	

   


  	

  Section

  9.10


  	

  Amendments;

  Etc.


  
	

   


  	

  Section

  9.11


  	

  Address for Notices


  
	

   


  	

  Section

  9.12


  	

  Continuing

  Assignment; Pledge and Security Interest; Release


  
	

   


  	

  Section

  9.13


  	

  Severability


  
	

   


  	

  Section

  9.14


  	

  Survival Of Provisions


  
	

   


  	

  Section

  9.15


  	

  Binding

  Agreement.


  
	

   


  	

  Section

  9.16


  	

  Headings


  
	

   


  	

  Section

  9.17


  	

  GOVERNING

  LAW


  
	

   


  	

  Section

  9.18


  	

  WAIVER

  OF JURY TRIAL; SUBMISSION TO JURISDICTION


  
	

   


  	

  Section

  9.19


  	

  Third

  Party Rights


  
	

   


  	

  Section

  9.20


  	

  Execution in Counterparts


  
	

   


  	

  Section

  9.21


  	

  Applicability of

  Credit Agreement


  
	

   


  	

   


  	

   


  
	

  Schedule 1 — Collateral


  
	

  Schedule 2 — Locations Of Business Of Pledgor 


  





 




F-3





























 




PLEDGE

AGREEMENT, dated as of February [•], 2002 (this “Agreement”),

between NORTHWESTERN CORPORATION, a corporation duly organized and validly

existing under the laws of the state of Delaware (the “Pledgor”), and

CREDIT SUISSE FIRST BOSTON, as collateral agent (in such capacity, together

with its successors in such capacity, the “Collateral Agent”) for the

benefit of the Secured Parties (as defined below).




 




W I T N E S S E T H:




 




WHEREAS, the

Pledgor intends to acquire (the “Acquisition”) the membership interest

of The Montana Power Company L.L.C., a Montana limited liability company (the “Company”),

which holds the assets and securities owned by The Montana Power Company (“MPC”)

as of September 29, 2000 (other than Entech, Inc. and its subsidiaries)

pursuant to the terms of the Unit Purchase Agreement, dated as of September 29,

2000 (as amended from time to time, the “Acquisition Agreement”), among

the Pledgor, MPC, the Company, and Touch America Holding, Inc., as the seller;




 




WHEREAS, after

giving effect to the Acquisition, the Company will be a direct wholly-owned

subsidiary of the Pledgor;




 




WHEREAS, the

Pledgor has entered into the Credit Agreement, dated as of January 14, 2002 (as

amended, restated, supplemented or otherwise modified from time to time, the “Credit

Agreement”), with the financial institutions from time to time parties

thereto (each, a “Lender” and collectively, the “Lenders”) and

Credit Suisse First Boston, as Administrative Agent for the Lenders; and




 




WHEREAS, as a

condition precedent to the obligations of the Lenders under the Credit

Agreement, the Pledgor is required to execute and deliver this Agreement and to

grant the Collateral Agent a continuing security interest in all of the

Collateral (as defined in Section 2 below) to secure all of the Obligations.




 




A G R E E M E N T




 




NOW, THEREFORE, in

consideration of the benefits to the Pledgor, the receipt and sufficiency of

which are hereby acknowledged, the Pledgor hereby makes the following

assignments, representations and warranties to the Collateral Agent, for the

benefit of the Secured Parties and hereby covenants and agrees with the

Collateral Agent, for the benefit of the Secured Parties, as follows:




ARTICLE I




 




DEFINITIONS




 




Section 1.1  Defined Terms.  For all purposes of this Agreement, (i)

capitalized terms not otherwise defined herein shall have the meanings set

forth in the Credit Agreement and (ii) the principles of construction set forth

in Section 1.2 of the Credit Agreement shall apply.




 




F-4





























 




Section 1.2             Uniform

Commercial Code; Additional Terms. 

Except for the terms defined in this Agreement or in the Credit

Agreement, all terms defined in Article 8 or 9 of the Uniform Commercial Code

of the State of New York (the “Uniform Commercial Code”) which are used

in this Agreement shall have the meaning specified in such Articles.




 




In addition, the

following terms shall have the meaning herein specified:




 




“Acquisition”

has the meaning given in the recitals to this Agreement.




 




“Acquisition

Agreement” has the meaning given in the recitals to this Agreement.




 




“Agreement”

has the meaning given in the introductory paragraph to this Agreement.




 




“Collateral”

has the meaning given in Section 2 of this Agreement.




 




“Collateral

Agent” has the meaning given in the introductory paragraph to this

Agreement.




 




“Company”

has the meaning given in the recitals to this Agreement.




 




“Credit

Agreement” has the meaning given in the recitals to this Agreement.




 




“Federal

Securities Laws” has the meaning given in Section 7.3 of this Agreement.




 




“Governmental

Rule” means any law, rule, regulation, ordinance, order, code interpretation,

treaty, judgment, decree, directive, guideline, policy or similar form of

decision of any Governmental Authority.




 




“LLC Agreement”

means The Limited Liability Operating Agreement of The Montana Power Company,

L.L.C.




 




“Legal

Requirements” means, as to any Person, the articles of incorporation,

bylaws or other organizational or governing documents of such Person, and any

Governmental Rule, in each case applicable to, or binding upon such Person or

any of its properties or to which such Person or any of its property is

subject.




 




“Lenders”

has the meaning given in the recitals to this Agreement.




 




“Membership

Interests” has the meaning given in Section 2.1(a) of this Agreement.




 




“MPC” has

the meaning given in the recitals to this Agreement.




 




F-5





























 




“Permitted

Collateral Liens” means, collectively, (i) the security interest created

hereby and (ii) Liens of the type set forth in clause (a) or (f) of the

definition of “Permitted Liens” set forth in Section 1.1 of the Credit

Agreement.




 




“Pledgor”

has the meaning given in the introductory paragraph to this Agreement.




 




“Secured

Parties” means, collectively, the Administrative Agent, the Collateral

Agent, the Lenders and the Issuing Lender.




 




ARTICLE II




 




PLEDGE AND SECURITY

INTEREST




 




Section 2.1             Granting Clause.  The Pledgor hereby assigns, grants, pledges

and hypothecates to the Collateral Agent for the ratable benefit of the Secured

Parties a continuing security interest in and to, all of its estate, right,

title and interest (whether now existing or hereafter acquired) in and to the

following (the “Collateral”):




 




(a)           the membership and other debt or

equity interests owned by the Pledgor in and to the Company, whether now owned

or hereafter acquired (the “Membership Interests”), and all rights and benefits

of the Pledgor under the LLC Agreement, including, without limitation:




 




(i)            all of the Pledgor’s interest in the

capital of the Company, including the Pledgor’s capital accounts in the

Company, if any;




 




(ii)           all rights of the Pledgor as a member

and all rights of the Pledgor as a member to receive income, gain, profit,

distributions, cash, instruments and other property from time to time

receivable or otherwise distributable in respect of the Membership Interests or

pursuant to the LLC Agreement;




 




(iii)          all other payments due or to become

due to the Pledgor in respect of such Membership Interests or the LLC

Agreement, including but not limited to all rights of the Pledgor to receive

proceeds of any insurance, indemnity, warranty or guaranty with respect to the

Membership Interests or the LLC Agreement;




 




(iv)          all claims of the Pledgor for damages

arising out of or for breach of or default under the LLC Agreement or relating

to the Membership Interests;




 




(v)           all indebtedness or other obligations

of the Company owed to the Pledgor;




 




(vi)          the right of the Pledgor to terminate,

amend, supplement, modify or waive performance under the LLC Agreement, to

perform and 




 




F-6





























 




exercise

consensual or voting rights thereunder, including but not limited to the right,

if any, to manage the Company’s affairs, to make determinations, to exercise

any election or option or to give or receive any notice, consent, amendment,

waiver or approval, and the right, if any, to compel performance and otherwise

exercise all remedies thereunder;




 




(vii)         all rights of the Pledgor, as a member

of the Company, to all property and assets of the Company (whether real

property, inventory, equipment, contract rights, accounts, receivables, general

intangibles, securities, instruments, chattel paper, documents, chooses in

action or otherwise); and




 




(viii)        all securities, notes, certificates and

other instruments evidencing any of the foregoing rights and interests or the

ownership thereof in the Company or its assets, and




 




(b)           to the extent not included in the

foregoing, all proceeds of any and all of the foregoing Collateral (including,

without limitation, proceeds that constitute property of the types described above).




 




Section 2.2             Security for

Obligations.  This Agreement and

all of the Collateral secures the prompt and complete payment and performance

of all the Obligations.  The Pledgor

agrees that this Agreement, the security interest granted pursuant to this Agreement

and all rights, remedies, powers and privileges provided to the Collateral

Agent under this Agreement are in addition to and not in any way affected or

limited by any other security now or at any time held by the Collateral Agent

to secure payment and performance of the Obligations.




 




Section 2.3             Delivery Of

Certificates.  All certificates,

notes and other instruments representing or evidencing any Collateral

(including the certificates described on Schedule 1 hereto) shall be delivered

to and held by or on behalf of, and, in the case of notes, endorsed to the

order of, the Collateral Agent, or its designee pursuant hereto, in the manner

set forth in Section 9.3 hereof.




 




ARTICLE III




 




REPRESENTATIONS

AND WARRANTIES




 




The Pledgor

represents and warrants as follows:




 




Section 3.1             Organization;

Place of Business.  The Pledgor

is a corporation organized solely under the laws of the State of Delaware and

no other state or jurisdiction.  The

Pledgor’s principal place of business and chief executive office is located at

125 South Dakota Avenue, Suite 1100, Sioux Falls, South Dakota 57104-6403.




 




Section 3.2             Beneficial Ownership.  The Pledgor is the sole member of the

Company and owns 100% of the membership interests in the Company, and has not 




 




F-7





























 




assigned any of its rights and interests in, to and under all or any

portion of the Collateral, except for the assignments made herein.




 




Section 3.3             Title; No

Assignment to Third Parties. 

The Pledgor is the legal and beneficial owner of and has full rights,

good title and interest in, to and under all of the rights and interests

comprising the Collateral free and clear of all Liens, except for Permitted

Collateral Liens.  The Pledgor has not

authorized the filing of any financing statement or other instrument similar in

effect covering all or any part of the Collateral in any recording office,

except such as may have been filed in favor of the Collateral Agent relating to

this Agreement.




 




Section 3.4             Valid Lien

and Security Interest.  There

exists no “adverse claim” within the meaning of Section 8-302 of the Uniform

Commercial Code, with respect to the Membership Interests.  The Pledgor has the unencumbered right and

power to pledge the Collateral to the Collateral Agent.  This Agreement creates a good and valid Lien

and security interest in the Collateral securing the payment of all the

Obligations.  All actions necessary to

perfect, establish the first priority of, or otherwise protect the security

interest of the Collateral Agent in the Collateral have been duly taken, except

for the taking possession by the Collateral Agent of any certificates or other

instruments constituting Collateral which are acquired by the Pledgor after the

date hereof.




 




Section 3.5             No Other Approval

Required.  Except for the filing

of the financing statements in the Office of the Secretary of State of the

State of Delaware, no consent of any other Person and no authorization,

approval, or other action by, or notice to or filing with, any Person is

required (i) for the pledge and assignment by the Pledgor of the Collateral

pursuant to this Agreement or (ii) for the validity, perfection or maintenance

of the security interest created hereby (including the first priority nature of

such security interest), except, in the case of the maintenance of perfection,

for the filing of continuation statements under the UCC.  No consent of any other Person and no

authorization, approval, or other action by, or notice to or filing with, any

Person is required for the exercise by the Collateral Agent of the voting or

other rights provided for in this Agreement or the remedies in respect of such

Collateral pursuant to this Agreement or as provided by law, except as may be

required in connection with any disposition of any portion of the Collateral by

laws affecting the offering and sale of securities generally and except for

regulatory approvals or consents which may be required pursuant to Governmental

Rules.




 




Section 3.6             Membership Interests.  The Membership Interests constituting

Collateral are evidenced by certificated securities representing 100% of the

Membership Interests in the Company executed by the manager of the Company on

February [•], 2002 that state, among other things, that the Pledgor is a

member of the Company and is entitled to the full benefits and privileges of

such membership.




 




Section 3.7             No Encumbrances.  There are no outstanding agreements, options

and contracts to sell all or any portion of the Collateral.  No part of the Collateral is subject to the

terms of any agreement to which the Pledgor is a party or by which the Pledgor

is bound restricting the sale or transfer of such Collateral, except for the

Credit 




 




F-8





























 




Agreement and the LLC Agreement. 

No Person has any right to purchase or terminate any or all of the

membership interests in the Company except pursuant to the terms of this

Agreement and the LLC Agreement.




 




ARTICLE IV




 




COVENANTS




The Pledgor agrees

that:




 




Section 4.1             Change of

Name, Jurisdiction of Organization or Location of Place of Business.  It shall not change its name or jurisdiction

of organization without giving at least thirty (30) days’ prior written notice

thereof to the Administrative Agent and the Collateral Agent.  It shall give the Administrative Agent and

the Collateral Agent at least thirty (30) days’ prior written notice before it

changes the location of its principal place of business or chief executive

office, or the location of any of the Collateral.  In either such case, the Pledgor shall promptly and at its

expense execute and deliver such instruments and documents to the Collateral

Agent that it may reasonably required in connection therewith.




 




Section 4.2             Performance of LLC

Agreement.  It shall at its

expense perform and observe all the terms and provisions of the LLC Agreement

to be performed or observed by it, use its best efforts to maintain the LLC

Agreement in full force and effect, enforce the LLC Agreement in accordance

with its terms, and take such further action that may be necessary to such end

as may be from time to time reasonably requested by the Collateral Agent.  It shall not cancel or terminate the LLC

Agreement or consent to or accept any cancellation or termination thereof;

amend or otherwise modify any LLC Agreement in any material respect if such

amendment or modification would materially impair the value of the interest or

rights of the Pledgor thereunder; or waive any material default under or

material breach of the LLC Agreement. 

In addition, it will not consent to any transaction for the termination,

dissolution or winding up of, or the merger or consolidation with any other

Person by, the admission of additional members to, or otherwise affect or

change the structure or organization of the Company, except in each case as

permitted pursuant to Section 6.2 of the Credit Agreement.




 




Section 4.3             No Impairment of

Collateral.  It shall not take

or permit to be taken any action in connection with the Collateral which would

impair in any material respect the value of the interests or rights of the

Pledgor therein or which would impair in any material respect the interests or

rights of the Collateral Agent therein or with respect thereto, except as

permitted pursuant to Section 6.2 of the Credit Agreement.




 




Section 4.4             Defense of Collateral.  It will defend the Collateral against all

claims and demands of all Persons (other than the Secured Parties) claiming an

interest in any of the Collateral.  It

will discharge or cause to be discharged all Liens on any or all of the

Collateral, except for Permitted Collateral Liens.




 




F-9





























 




Section 4.5             Disposition of

Collateral.  It shall not transfer,

sell, assign (by operation of law or otherwise) or otherwise dispose of any of

the Collateral or create or suffer to exist any Lien upon or with respect to

any of the Collateral, except (i) for Permitted Collateral Liens and (ii) as

otherwise permitted pursuant to Section 6.2 of the Credit Agreement.




 




Section 4.6             No Other Filings.  The Pledgor will not file or authorize or

permit to be filed in any jurisdiction any financing statements under the UCC

or any like statement relating to the Collateral in which the Collateral Agent

is not named as the sole secured party.




 




Section 4.7             Voting Rights.  It shall exercise any and all management,

voting and other consensual rights pertaining to the LLC Agreement and the

Company in a manner which is not inconsistent with the terms of this Agreement

and the other Loan Documents.




 




Section 4.8             Distributions.  If the Pledgor in its capacity as a member

of the Company receives any income, dividend or other distribution of money or

property of any kind from the Company other than as permitted hereby and by the

other Loan Documents, the Pledgor shall hold such income, dividend or other

distribution as trustee for, and shall deliver the same to, the Collateral

Agent.




 




Section 4.9             Filing of

Bankruptcy Proceedings.  To the

extent it may do so under applicable Legal Requirements, the Pledgor, for

itself and its successors and assigns, shall not cast any vote as a member of

the Company (a) in favor of the commencement of a voluntary case or other

proceeding seeking liquidation, reorganization, rehabilitation or other relief

with respect to the Company or its debts under any bankruptcy, insolvency or

other similar law now or hereafter in effect in any jurisdiction or seeking the

appointment of a trustee, receiver, liquidator, custodian or other similar

official of the owner of the Company or any substantial part of the Company’s

property, (b) authorize the Company to consent to any such aforesaid relief or

to the appointment of or taking possession by any such aforesaid official in an

involuntary case or other proceeding commenced against the Company or (c)

authorize the Company to make a general assignment for the benefit of

creditors.




 




Section 4.10           Proceeds of Collateral.  The Pledgor shall, at all times, keep

pledged to the Collateral Agent (for the benefit of itself and the other

Secured Parties) pursuant hereto all Collateral and all dividends,

distributions, interest, principal and other proceeds received by Collateral

Agent with respect thereto, and will not permit any issuer of such Collateral

to issue any membership interests or other equity interests which shall not

have been immediately duly pledged to the Collateral Agent (for the benefit of

itself and the other Secured Parties) hereunder on a first priority perfected

basis.




 




F-10





























 




ARTICLE V




 




PERFECTION OF

SECURITY INTEREST




 




Section 5.1             Continued

Perfection Of Security Interest. 

The Pledgor agrees that it will not take any actions or fail to perform

any of its duties or obligations under this Agreement so that after giving

effect to such action or inaction the Collateral Agent will not have a

perfected security interest in any of the Collateral.




 




The Pledgor agrees

that from time to time, at the expense of the Pledgor, the Pledgor will

promptly execute and deliver all further instruments and documents, and take

all further action, that may be necessary, or that the Collateral Agent may

reasonably request, in order to perfect and protect the pledge, hypothecation

and security interest granted or purported to be granted hereby or to enable

the Collateral Agent to exercise and enforce its rights and remedies hereunder

with respect to any Collateral.  Without

limiting the generality of the foregoing, the Pledgor will execute and file

such instruments or notices, as may be necessary, or as the Collateral Agent

may reasonably request, in order to perfect and preserve the pledge,

hypothecation and security interest granted or purported to be granted hereby.




 




The Pledgor hereby

authorizes the Collateral Agent to file one or more financing or continuation

statements, and amendments thereto, relative to all or any part of the

Collateral without the signature of the Pledgor where permitted by law.  A photocopy or other reproduction of this Agreement

or any financing statement covering the Collateral or any part thereof shall be

sufficient as a financing statement where permitted by law.




 




If any Event of

Default has occurred and is continuing, all payments received by the Pledgor

under or in connection with the LLC Agreement, the Membership Interests, or

otherwise in respect of the Collateral shall be received in trust for the

benefit of the Collateral Agent, shall be segregated from other funds of the

Pledgor and shall be forthwith paid over to the Collateral Agent in the same

form as so received (with any necessary indorsement).




 




ARTICLE VI




 




RIGHTS OF

PARTIES




 




Section 6.1             Pledgor’s Rights.  (a) 

Unless an Event of Default shall have occurred and be continuing under

any of the Loan Documents, the Pledgor shall be entitled to exercise all voting

and other rights with respect to the Membership Interests, the LLC Agreement

and the other Collateral; provided, however, that no vote shall

be cast, right exercised or other action taken which could reasonably be

expected to have a material adverse effect on the value of, or the Pledgor’s

right, title or interest in, the Collateral.




 




F-11





























 




(b)           Unless an Event of Default shall have

occurred and be continuing, the Pledgor shall be entitled to receive and retain

any and all distributions paid in respect of the Membership Interests, the LLC

Agreement and the other Collateral in compliance with the terms of the Loan

Documents, provided, however, that any and all:




 




(i) distributions

paid or payable in respect of the Membership Interests, the LLC Agreement or

the other Collateral paid in the form of securities or other equity interests

in the Company in connection with (w) any partial or total liquidation or

dissolution of the Company, (x) any distribution of capital of the Company, (y)

any recapitalization or reclassification of the capital of the Company and (z)

any reorganization of the Company; and




 




(ii) property in

the form of securities or other equity interests in the Company paid, payable

or otherwise distributed in redemption of, or in exchange for the property

described in clause (i) immediately above,




 




shall be, and shall be forthwith delivered to the Collateral Agent to

hold as Collateral and shall, if received by the Pledgor, be received in trust

for the benefit of the Collateral Agent, shall be segregated from other funds

of the Pledgor and shall be forthwith paid over to the Collateral Agent in the

same form as so received (with any necessary indorsement).  For the avoidance of doubt, so long as no

Event of Default exists at the time of such receipt, the Pledgor shall be

entitled to receive and retain, free of the Lien of this Agreement, any

distribution or other transfer of assets (other than securities or equity

interests in the Company) or liabilities of the Company in connection with any

liquidation, partial liquidation, dissolution or reorganization of the

Company.  Upon the occurrence and during

the continuation of an Event of Default, all rights of the Pledgor to receive

the distributions which it would otherwise be authorized to receive and retain

pursuant to the preceding sentence shall cease, and all such rights shall

thereupon become vested in the Collateral Agent which shall thereupon have the

sole right to receive and hold as Collateral such distributions.




 




Section 6.2             Obligations

of Pledgor and Rights of Collateral Agent.  (a)  Anything herein to

the contrary notwithstanding, (a) the Pledgor shall remain liable under the LLC

Agreement to the extent set forth therein to perform all of its duties and

obligations thereunder to the same extent as if this Agreement had not been

executed, (b) the exercise by the Collateral Agent of any of the rights

hereunder shall not release the Pledgor from any of its duties or obligations

under the LLC Agreement and (c) neither the Collateral Agent nor any Secured

Party shall have any obligation or liability under the LLC Agreement by reason

of this Agreement, nor shall the Collateral Agent or any Secured Party be obligated

to perform any of the obligations or duties of the Pledgor thereunder or to

take any action to collect or enforce any claim assigned hereunder, unless the

Collateral Agent has agreed in writing to be so obligated.




 




(b)           If the Pledgor fails to perform any

agreement contained herein, the Collateral Agent may itself perform, or cause

performance of, such agreement and the Collateral Agent shall deliver a written

notification to the Pledgor of such decision to perform, or cause the

performance of, any such agreement, and the Collateral Agent shall 




 




F-12





























 




exercise reasonable care and act diligently in all such cases, and the

reasonable expenses of the Collateral Agent incurred in connection therewith

shall be payable by the Pledgor under Section 9.5 of the Credit Agreement.




 




(c)           Notwithstanding anything contained

herein to the contrary, the powers conferred on the Collateral Agent hereunder

are solely to protect its interest, and the interest of the other Secured

Parties, in the Collateral and shall not impose any duty or obligation upon the

Collateral Agent or its designated agents to exercise any such powers.  Except for the reasonable care and

preservation of any Collateral in its possession and the accounting for moneys

actually received by it hereunder, and the duties set forth in Section 9-207 of

the Uniform Commercial Code, the Collateral Agent shall have no duty as to any

Collateral or as to the taking of any necessary steps to preserve any rights against

prior parties or any other rights pertaining to any Collateral, unless the

Collateral Agent has agreed in writing to be so obligated.




 




ARTICLE VII




 




REMEDIES




 




Section 7.1             Remedies of

Collateral Agent.  At any time

after an Event of Default occurs and is continuing, the Collateral Agent has

the right, subject to compliance with any regulatory requirements of any

applicable Governmental Rule, to do any or all of the following:




 




(a)           The Collateral Agent may exercise any

and all rights and remedies of the Pledgor under or in connection with the LLC

Agreement, the Membership Interests or otherwise in respect of the Collateral,

including, without limitation, any and all rights of the Pledgor to demand, sue

for, collect, receive or otherwise require payment of any amount under, or

performance of any provision of, the LLC Agreement and all rights of the

Pledgor to manage and control the operations of the Company.  In addition, the Collateral Agent may cure

any default by the Pledgor under the LLC Agreement.




 




(b)           The Collateral Agent shall have the

right in its discretion and without notice to the Pledgor, to transfer to or to

register in the name of the Collateral Agent or any of its nominees any or all

of the Collateral, including securing the appointment of a receiver for the

Pledgor without notice to the Company or the Pledgor.




 




(c)           Upon written notice of the Collateral

Agent to the Pledgor, all rights of the Pledgor to exercise or refrain from

exercising the voting and other consensual rights which it would otherwise be

entitled to exercise shall cease, and all such rights shall thereupon become

vested in the Collateral Agent who shall thereupon have the sole right to

exercise or refrain from exercising in a reasonable manner such voting and

other consensual rights in aid of foreclosure or other enforcement of its

security interest in the Collateral.




 




F-13





























 




(d)           Upon receipt of written notice of

such Event of Default from the Collateral Agent to the Pledgor, all rights of

the Pledgor to receive the distributions which it would otherwise be authorized

to receive and retain, shall cease, and all such rights shall thereupon become

vested in the Collateral Agent who shall thereupon have the sole right to

receive and hold as Collateral such distributions.  All distributions which are received by the Pledgor contrary to

the provisions of this paragraph, shall be received in trust for the benefit of

the Collateral Agent, shall be segregated from other funds of the Pledgor and

shall be forthwith paid over to the Collateral Agent as Collateral in the same

form as so received (with any necessary indorsement).




 




(e)           The Collateral Agent may (i) notify

the Company to make payment and performance due the Pledgor under the LLC Agreement

to the Collateral Agent, (ii) extend the time of payment and performance of, or

compromise or settle for cash, credit or otherwise, and upon any terms and

conditions, the obligations of the Pledgor under the LLC Agreement, (iii) file

any claims, commence, maintain, settle or discontinue any actions, suits or

other proceedings at law or in equity deemed by the Collateral Agent in its

sole discretion necessary or advisable for the purpose of collecting upon the

Collateral or enforcing the LLC Agreement, including specific enforcement of

any covenant or agreement contained herein or in the LLC Agreement, or to

foreclose or enforce the security interest in all or any part of the Collateral

granted herein, or to enforce any other legal or equitable right vested in it

by this Agreement or Legal Requirements, and (iv) execute any instrument and do

all other things deemed necessary and proper by the Collateral Agent in its

sole discretion to protect and preserve and permit the Collateral Agent to

realize upon the Collateral and the other rights contemplated thereby.




 




Section 7.2             Sale of Collateral.  In addition to exercising the foregoing

rights, subject to compliance with any regulatory requirements of any

applicable Governmental Rule, the Collateral Agent may arrange for and conduct

a sale of the Collateral at a public or private sale, at any exchange, broker’s

board or at any of the Collateral Agent’s offices or elsewhere (as the

Collateral Agent may elect), for cash, on credit or for future delivery, which sale

may be conducted by an employee or representative of the Collateral Agent, and

any such sale shall be considered or deemed to be a sale made in a commercially

reasonable manner.  The Collateral Agent

agrees to provide at least ten (10) days’ prior notice to the Pledgor

specifying the time and place of any public sale or the time after which any

private sale is to be made and the Pledgor agrees that such ten (10) days’

notice shall constitute reasonable notification.  The Collateral Agent may release, temporarily or otherwise, to

the Pledgor any item of Collateral of which the Collateral Agent has taken

possession pursuant to any right granted to the Collateral Agent by this

Agreement without waiving any rights granted to the Collateral Agent under this

Agreement, the Credit Agreement, the other Loan Documents or any other

agreement related hereto or thereto. 

The Pledgor, in dealing with or disposing of the Collateral or any part

thereof, hereby waives all rights, legal and equitable, it may now or hereafter

have to require marshaling of assets or to require, upon foreclosure, sales of

assets in a particular order.  The

Pledgor also waives its right to




 




F-14





























 




challenge the reasonableness of any disclaimer of warranties, title and

the like made by the Collateral Agent in connection with a sale of the

Collateral.  Each successor and assign

of the Pledgor, and any holder of a lien subordinate to the Lien created hereby

(without implying that the Pledgor has, except as expressly provided herein, a

right to grant an interest in, or a subordinate lien on, any of the

Collateral), by acceptance of its interest or lien agrees that it shall be

bound by the above waiver, to the same extent as if such holder gave the waiver

itself.  The Pledgor also hereby waives,

to the full extent it may lawfully do so, the benefit of all laws providing for

rights of appraisal, valuation, stay or extension or of redemption after

foreclosure now or hereafter in force. 

If the Collateral Agent sells any of the Collateral upon credit, the

Pledgor will be credited only with payments actually made by the purchaser,

received by the Collateral Agent and applied to the indebtedness of the

purchaser.  In the event a purchaser

fails to pay for the Collateral, the Collateral Agent may resell the Collateral

and the Pledgor shall be credited with the proceeds of such sale.




 




Section 7.3             Registration of

Securities.  (a)  In view of the position of the Pledgor in

relation to the Collateral, or because of other current or future

circumstances, questions may arise under the Securities Act of 1933, as now or

hereafter in effect, or any similar statute hereafter enacted analogous in

purpose or effect (such Act and any such similar statute as from time to time in

effect being called the “Federal Securities Laws”) with respect to any

disposition of the Collateral permitted hereunder.  The Pledgor understands that compliance with the Federal

Securities Laws might very strictly limit the course of conduct of the Collateral

Agent if the Collateral Agent were to attempt to dispose of all or any part of

the Collateral, and might also limit the extent to which or the manner in which

any subsequent transferee of any Collateral could dispose of the same.  Similarly, there may be other legal

restrictions or limitations affecting the Collateral Agent in any attempt to

dispose of all or part of the Collateral under applicable Blue Sky or other

state securities laws or similar laws analogous in purpose or effect.  The Pledgor recognizes that in light of the

foregoing restrictions and limitations the Collateral Agent may, with respect

to any sale of Collateral, to the extent commercially reasonable, limit the

purchasers to those who will agree, among other things, to acquire Collateral

for their own account, for investment, and not with a view to the distribution

or resale thereof.  The Pledgor

acknowledges and agrees that, in light of the foregoing restrictions and

limitations, the Collateral Agent, in a commercially reasonable manner, (i) may

proceed to make such a sale whether or not a registration statement for the

purpose of registering the Collateral or part thereof shall have been filed

under the Federal Securities Laws and (ii) may approach and negotiate with a

single possible purchaser to effect such sale. 

The Pledgor acknowledges and agrees that any such sale might result in

prices and other terms less favorable to the seller than if such sale were a

public sale without such restrictions. 

In the event of any such sale, the Collateral Agent shall incur no

responsibility or liability for selling all or any part of the Collateral at a

price that the Collateral Agent, in a commercially reasonable manner, may in

good faith deem reasonable under the circumstances, notwithstanding the

possibility that a substantially higher price might have been realized if the

sale were deferred until after registration as aforesaid or if more than a

single purchaser were approached.  The

provisions of this paragraph will apply notwithstanding the existence of a

public or private market upon which the quotations or sales prices may exceed

substantially the 




 




F-15





























 




price at which the Collateral Agent sells.  The Pledgor agrees that sales made pursuant to this paragraph are

made in a commercially reasonable manner.




 




(b)           If the Collateral Agent shall decide

to exercise its right to sell any or all of the Collateral, and if in the

opinion of counsel for the Collateral Agent it is necessary to have such Collateral,

or that portion thereof to be sold, registered under the provisions of the

Securities Act of 1933, as amended, or otherwise registered or qualified under

any Federal Securities Law, the Pledgor and the Company will execute and

deliver, all at the Pledgor’s and the Company’s expense, all such instruments

and documents which, in the opinion of the Collateral Agent, are necessary to

register or qualify such Collateral, or that portion thereof to be sold, under

the provisions of the Securities Laws. 

The Pledgor and the Company will execute and will use best efforts to

cause any registration statement relating thereto to become effective and to

remain effective for a period of not less than six months from the date of the

first public offering of such Collateral, or that portion thereof to be sold,

and to make all amendments thereto and/or to any related prospectus or similar

document which, in the reasonable opinion of the Collateral Agent, are

necessary, all in conformity with the Securities Laws applicable thereto.  Without limiting the generality of the

foregoing, the Pledgor and the Company agree to comply with the provisions of

the securities or “Blue Sky” laws of any jurisdiction(s) which the Collateral Agent

shall reasonably designate and to make available to security holders, as soon

as practicable, an earnings statement which will satisfy the provisions of

Section 11(a) of the Securities Act of 1933.




 




Section 7.4             Distributions as

Collateral.  All payments made

under or in connection with the LLC Agreement, the Membership Interests, or

otherwise in respect of the Collateral and received by the Collateral Agent

may, in the discretion of the Collateral Agent and to the extent permitted by

Legal Requirements, be held by the Collateral Agent as collateral for the

Obligations.




 




Section 7.5             Waiver of

Rights and Remedies Under Applicable Legal Requirements.  To the extent permitted under applicable

Legal Requirements, the Pledgor hereby waives all rights and remedies of a

debtor or grantor under the Uniform Commercial Code or other applicable Legal

Requirements (except for any defense of payment in full), and all formalities

prescribed by law relative to the sale or disposition of the Collateral (other

than notice of sale) after the occurrence and during the continuation of an

Event of Default and all other rights and remedies of the Pledgor with respect

thereto.




 




Section 7.6             Compliance

With Limitations and Restrictions; No Discount.  The Pledgor hereby agrees that in respect of

any sale of any of the Collateral pursuant to the terms hereof, the Collateral

Agent is hereby authorized to comply with any limitation or restriction in

connection with such sale as it may be advised by counsel is necessary in order

to avoid any violation of applicable Legal Requirements, or in order to obtain

any required approval of the sale or of the purchaser by any Governmental

Authority or official, and the Pledgor further agrees that such compliance

shall not result in such sale being considered or deemed not to have been made

in a commercially reasonable manner, nor shall the Collateral Agent be liable

or accountable to the Pledgor




 




F-16





























 




for any discount allowed by reason of the fact that such Collateral is

sold in compliance with any such limitation or restriction.




 




ARTICLE VIII




 




ATTORNEY-IN-FACT




 




Section 8.1             Collateral

Agent Appointed Attorney-in-Fact. 

The Pledgor hereby irrevocably appoints the Collateral Agent as the

Pledgor’s attorney-in-fact, with full authority in the place and stead of the

Pledgor and in the name of the Pledgor or otherwise, upon the occurrence of and

during the continuance of an Event of Default, in the Collateral Agent’s

discretion to take any and all actions authorized or permitted to be taken by the

Collateral Agent under this Agreement or by law, including but not limited to

the power to:




 




(a)           take any action and execute any

instrument which the Collateral Agent may reasonably deem necessary or

advisable to accomplish the purposes of this Agreement;




 




(b)           to ask for, demand, collect, sue for,

recover, receive and give acquittance and receipts for moneys due and to become

due under or in connection with the Collateral;




 




(c)           to receive, indorse, and collect any

drafts or other instruments, documents and chattel paper in connection

therewith; and




 




(d)           to file any claims or take any action

or institute any proceedings which the Collateral Agent may deem to be

necessary or desirable for the collection of any of the Collateral or to

enforce compliance with the terms and conditions of the LLC Agreement.




 




ARTICLE IX




 




MISCELLANEOUS




 




Section 9.1             Indemnity and

Expenses.  The provisions of

Section 9.5 of the Credit Agreement are incorporated herein by reference.




 




Section 9.2             Security Interest

Absolute.  The obligations of

the Pledgor under this Agreement shall be absolute and unconditional and shall

remain in full force and effect without regard to, and shall not be released,

suspended, discharged, terminated or otherwise affected by, any circumstance or

occurrence whatsoever, including, without limitation:  (a) any renewal, extension, amendment or modification of, or

addition or supplement to or deletion from, the Credit Agreement or any other

Loan Document or any other instrument or agreement referred to therein, or any

assignment or transfer of any thereof; (b) any waiver, consent, extension,

indulgence or other action or inaction under or in respect of any such

instrument or agreement or this Agreement or any exercise or non-exercise of

any right, remedy, power or privilege under or in respect of 




 




F-17





























 




this Agreement or any other Loan Document; (c) any furnishing of any

additional security (including, without limitation, any assets, whether now

owned or hereafter acquired, upon which a Lien is created or granted from time

to time pursuant to the other Security Documents) to the Collateral Agent or

any acceptance thereof or any sale, exchange, release, surrender or realization

of or upon any security by the Collateral Agent; or (d) any invalidity,

irregularity or unenforceability of all or part of the Obligations or of any

security therefor.  In the event of any

inconsistency between this Agreement and the Credit Agreement, the Credit

Agreement shall govern.




 




Section 9.3             Delivery of

Collateral.  All certificates or

instruments representing or evidencing the Collateral shall be delivered to and

held by or on behalf of the Collateral Agent pursuant hereto.  All such certificates or instruments shall

be in suitable form for transfer by delivery, or shall be accompanied by duly

executed instruments of transfer or assignment in blank, all in form and

substance reasonably acceptable to the Collateral Agent.  The Collateral Agent shall have the right,

at any time in its discretion and without prior notice to the Pledgor,

following the occurrence and during the continuation of an Event of Default, to

transfer to or to register in the name of the Collateral Agent or any of its

nominees any or all of the Collateral and to exchange certificates or

instruments representing or evidencing Collateral for certificates or

instruments of smaller or larger denominations.  In furtherance of the foregoing, the Pledgor shall further

execute and deliver to the Collateral Agent an ownership power in the form of

Exhibit A attached hereto with respect to the Membership Interests in the

Company owned by the Pledgor that are represented by certificates or other

instruments.




 




Section 9.4             Remedies

Cumulative; Delay Not Waiver.




 




(a)           Remedies Cumulative.  Each and every right and remedy of the

Collateral Agent hereunder shall be cumulative and shall be in addition to any

other right or remedy given hereunder or under the other Loan Documents now or

hereafter existing at law or in equity or by statute.




 




(b)           No Waiver; Separate Causes of

Action.  No delay or omission to

exercise any right, power or remedy accruing to the Collateral Agent upon the

occurrence of any breach or default of the Pledgor under this Agreement or any

other Loan Document shall impair any such right, power or remedy of the

Collateral Agent, nor shall it be construed to be a waiver of any such breach

or default, or an acquiescence therein, or of or in any similar breach or

default thereafter occurring, nor shall any waiver of any other breach or

default under this Agreement or any other Loan Document be deemed a waiver of

any other breach or default theretofore or thereafter occurring.  Any waiver, permit, consent or approval of

any kind or character on the part of the Collateral Agent of any breach or

default under this Agreement, or any waiver on the part of the Secured Parties

or of the Collateral Agent of any provision or condition of this Agreement,

must be in writing and shall be effective only to the extent in such writing

specifically set forth.  Each and every

default by the Pledgor hereunder shall give rise to a separate cause of action

hereunder, and separate suits may be brought hereunder as each cause of action

arises.




 




F-18





























 




Section 9.5             Payment of Fees.  The Pledgor shall pay all filing,

registration and recording fees and all re-filing, re-registration and

re-recording fees, and all reasonable expenses incident to the execution and

acknowledgment of this Agreement, any assurance, and all federal, state, county

and municipal stamp taxes and other taxes, duties, imports, assessments and

governmental charges arising out of or in connection with the execution and

delivery of this Agreement, any agreement supplemental hereto, any financing

statements, and any instruments of further assurance.




 




Section 9.6             Information

Concerning Collateral.  The

Pledgor shall, promptly upon the request of the Collateral Agent, provide to

the Collateral Agent all information and evidence as the Collateral Agent may

reasonably request concerning the Collateral to enable the Collateral Agent to

administer or enforce the provisions of this Agreement.




 




Section 9.7             Company’s Consent.  The Company hereby consents to the

assignment of and grant of a security interest in the Collateral to the

Collateral Agent and to the exercise by the Collateral Agent of all rights and

powers assigned or delegated to the Collateral Agent by the Pledgor hereunder,

including the right, upon and during an Event of Default and subject to

compliance with any regulatory requirements of any applicable Governmental

Rule, to exercise the Pledgor’s voting rights and other rights with respect to

the Collateral to manage or control the Company.




 




Section 9.8             Termination of

Security Interest.  Upon the

indefeasible payment in full in cash of all Obligations, the termination of all

Letters of Credit and the termination of all Commitments and other obligations

of the Secured Parties to extend credit under the Loan Documents, this

Agreement and the security interest and all other rights granted hereby shall

terminate and all rights to and interest in the Collateral shall revert to the

Pledgor.  Upon any such termination, the

Collateral Agent will return all certificates evidencing ownership interests in

the Company, and all ownership powers executed hereunder, to the Pledgor and

will, at the Pledgor’s expense, execute and deliver to the Pledgor such

documents (including UCC-3 termination statements) as the Company or the

Pledgor shall reasonably request to evidence such termination.  The release of the security interest in any

or all of the Collateral, the taking or acceptance of additional security, or

the resort by the Collateral Agent to any security it may have in any order it

may deem appropriate, shall not affect the liability of any person on the

indebtedness secured hereby.  If this

Agreement shall be terminated or revoked by operation of law, the Pledgor will

indemnify and save the Collateral Agent and the other Secured Parties harmless

from any loss which may be suffered or incurred by the Collateral Agent and the

other Secured Parties in acting hereunder prior to the receipt by the

Collateral Agent, its successors, transferees, or assigns of notice of such

termination or revocation.




 




Section 9.9             Expenses; Interest.




 




(a)           Expenses.  The Pledgor agrees to pay on demand to the

Collateral Agent all reasonable costs and expenses incurred by the Collateral

Agent (including the reasonable fees and disbursements of counsel) in

connection with its enforcement, 




 




F-19





























 




protection or preservation of any of its rights or claims (or the

rights or claims of any other Secured Party) under this Agreement.




 




(b)           Interest.  Any amount required to be paid by the Pledgor

pursuant to the terms hereof shall bear interest at the Default Rate or the

maximum rate permitted by Legal Requirements, whichever is less, from the date

due until paid in full.




 




Section 9.10           Amendments; Etc.  This Agreement may be changed, waived, discharged

or terminated only (i) by an instrument in writing signed by each of the

parties hereto, (ii) pursuant to Section 9.8 above and (iii) in accordance with

the Section 9.1 of the Credit Agreement.




 




Section 9.11           Address for Notices.  All notices and other communications

hereunder shall be given (in the manner specified in the Credit Agreement) to

the parties hereto at the addresses specified under their respective names on

the signature pages hereto, or as to any party at such other address as shall be

designated by such party in a written notice to each other party.




 




Section 9.12           Continuing

Assignment; Pledge and Security Interest; Release.  This Agreement shall create a continuing

pledge, assignment of, hypothecation of and security interest in the Collateral

and shall (a) remain in full force and effect until the payment in full of the

Obligations (other than contingent surviving obligations) and the termination

of the Commitments and (b) inure to the benefit of, and be enforceable by, the

Collateral Agent, the other Secured Parties and their respective successors,

transferees and assigns.  Without

limiting the generality of the foregoing clause (b), any Lender may assign or

otherwise transfer all or any portion of its rights in the Obligations to the extent

and in the manner provided in the Credit Agreement, and such assignee shall

thereupon become vested with all the benefits in respect thereof granted to

such Lender herein or otherwise.




 




Section 9.13           Severability. 

If any provision of this Agreement shall be held or deemed to be or

shall, in fact, be illegal, inoperative or unenforceable, the same shall not

affect any other provision or provisions herein contained or render the same

invalid, inoperative or unenforceable to any extent whatever.




 




Section 9.14           Survival of Provisions.  All agreements, representations and

warranties made herein shall survive the execution and delivery of this

Agreement and the other Loan Documents and the making of Loans, issuance of

Letters of Credit and other extensions of credit thereunder.




 




Section 9.15           Binding Agreement.  This Agreement is binding upon the Pledgor

and its successors and assigns.  The

Pledgor is not entitled to assign its obligations hereunder to any other person

without the written consent of the Collateral Agent, and any purported

assignment in violation of this provision shall be void.




 




Section 9.16           Headings.  The headings of the various articles,

sections and paragraphs of this Agreement are for convenience of reference

only, do not constitute a part hereof and shall not affect the meaning or

construction of any provision hereof.




 




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Section 9.17           GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND

CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK

WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF OTHER THAN SECTION

5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.




 




Section 9.18           WAIVER OF

JURY TRIAL; SUBMISSION TO JURISDICTION.  EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES

TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR

ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.




 




THE COLLATERAL AGENT, THE PLEDGOR AND THE COMPANY AGREE THAT ANY LEGAL

ACTION OR PROCEEDING BY OR AGAINST THE PLEDGOR OR THE COMPANY OR WITH RESPECT

TO OR ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT IN OR REMOVED TO THE COURTS

OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR THE COURTS OF

THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AS THE

COLLATERAL AGENT MAY ELECT.  BY

EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COLLATERAL AGENT, THE PLEDGOR AND

THE COMPANY ACCEPT, FOR THEMSELVES AND IN RESPECT OF THEIR PROPERTY, GENERALLY

AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.  THE COLLATERAL AGENT, THE PLEDGOR AND THE

COMPANY IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OUT OF ANY OF THE

AFOREMENTIONED COURTS IN ANY MANNER PERMITTED BY APPLICABLE LEGAL

REQUIREMENTS.  NOTHING HEREIN SHALL

AFFECT THE RIGHT OF THE COLLATERAL AGENT TO BRING LEGAL ACTION OR PROCEEDINGS

IN ANY OTHER COMPETENT JURISDICTION, INCLUDING JUDICIAL OR NON-JUDICIAL

FORECLOSURE.  THE COLLATERAL AGENT, THE

PLEDGOR AND THE COMPANY HEREBY WAIVE ANY RIGHT TO STAY OR DISMISS ANY ACTION OR

PROCEEDING UNDER OR IN CONNECTION WITH THIS AGREEMENT BROUGHT BEFORE THE

FOREGOING COURTS ON THE BASIS OF FORUM NON CONVENIENS.




 




Section 9.19           Third Party Rights.  Nothing in this Agreement, expressed or

implied, is intended or shall be construed to confer upon, or give to any

Person, other than the Pledgor, the Collateral Agent and the Secured Parties,

any security, rights, remedies or claims, legal or equitable, under or by

reason hereof, or any covenant or condition hereof; and this Agreement and the

covenants and agreements herein contained are and shall be held to be for the

sole and exclusive benefit of the Pledgor, the Collateral Agent and the Secured

Parties.




 




Section 9.20           Execution in

Counterparts.  This Agreement

may be executed in any number of counterparts and by different parties hereto

in separate counterparts, each of which when so executed shall be deemed to be

an original and all of which taken together shall constitute one and the same

instrument.




 




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Section 9.21           Applicability

of Credit Agreement.  In

amplification of, and notwithstanding any other provisions of this Agreement,

in connection with its obligations hereunder, the Collateral Agent has all of

the rights, powers, privileges, exculpations, protections and indemnities as

provided to it in the Credit Agreement.




 




[Signature pages to follow]




 




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IN WITNESS

WHEREOF, the parties hereto have caused this Agreement to be duly executed and

delivered by their officers thereunto duly authorized as of the date first

above written.




 




	

   


  	

  CREDIT SUISSE FIRST

  BOSTON, not in its individual capacity, but solely as Collateral Agent


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  
	

   


  	

   


  
	

   


  	

  Address for notice:


  
	

   


  	

   


  
	

   


  	

  Eleven Madison Avenue


  
	

   


  	

  New York, New York

  10010-3629


  
	

   


  	

  Attention:  Agency Department Manager


  
	

   


  	

  Telephone:


  
	

   


  	

  Telecopier:


  





 




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  NORTHWESTERN

  CORPORATION


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  
	

   


  	

   


  
	

   


  	

  Address for notice:


  
	

   


  	

   


  
	

   


  	

  125 South Dakota

  Avenue, Suite 1100


  
	

   


  	

  Sioux Falls, South

  Dakota 57104-6403


  
	

   


  	

  Attention:  Chief Financial Officer


  
	

   


  	

  Telephone:  (605) 978-2908


  
	

   


  	

  Telecopier:  (605) 978-2910


  
	

   


  	

   


  





 




F-24





























 




Exhibit A to




Pledge Agreement




 




Irrevocable Instrument of Transfer




 




FOR VALUE

RECEIVED, the undersigned hereby sells, assigns and transfers to




 




the following membership interest of The Montana Power Company, L.L.C.,

a Delaware limited liability company:




 




[100% Limited Liability Company Membership Interest]




 




and irrevocably appoints                                    its agent and attorney-in-fact

to transfer all or any part of such capital stock and to take all necessary and

appropriate action to effect any such transfer.  The agent and attorney-in-fact may substitute and appoint one or

more persons to act for him.  The

effectiveness of a transfer pursuant to this stock power shall be subject to

any and all transfer restrictions referenced on the face of the certificates

evidencing such interest or in the limited liability company agreement of the

subject company, to the extent they may from time to time exist.




 




	

   


  	

  NORTHWESTERN

  CORPORATION


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

  Name:


  
	

   


  	

   


  	

  Title:


  





 




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