Exhibit 10.2(c)
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of June 20, 2002 (this
"AMENDMENT"), among NORTHWESTERN CORPORATION a Delaware corporation (the
"BORROWER"), the several banks and other financial institutions from time to
time party hereto and CREDIT SUISSE FIRST BOSTON, as Administrative Agent (in
such capacity the "ADMINISTRATIVE AGENT").
A. Reference is made to that certain Credit Agreement, dated as of January
14, 2002, among the Borrower, the several banks and other financial institutions
from time to time party thereto (each, a "Lender" and, collectively, the
"LENDERS"), Credit Suisse First Boston, ABN AMRO Bank N.V., CIBC Inc. and
Barclays Capital (each a "Co-Arranger" and, collectively, the "CO-ARRANGERS"),
and the Administrative Agent (as the same has been or may be further amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
pursuant to which the Lenders have extended and agreed to extend credit to the
Borrower on the terms and subject to the conditions set forth therein.
B. The Borrower has requested that the Credit Agreement be amended on the
terms set forth herein to permit the Borrower to elect to convert Revolving
Credit Loans of certain Lenders outstanding on the Termination Date into term
loans to mature on the first anniversary of the Termination Date.
C. Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise specifically defined
herein, capitalized terms used herein shall have their respective meanings
assigned to such terms in the Credit Agreement.
SECTION 2 AMENDMENT. Subject to the effectiveness of this Amendment
in accordance with Section 4 hereof, the Credit Agreement is hereby amended as
follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by deleting the
definitions of "Commitment Percentage", "Note", "Required Lenders" and
"Type" in their entirety and by inserting the following definitions to
appear in alphabetical order:
""AMENDMENT NO. 1 TO CREDIT AGREEMENT" shall mean Amendment No. 1 to
Credit Agreement, dated as of June 20, 2002 among the Borrower, the
several banks and other financial institutions from time to time
party thereto and Credit Suisse First Boston, as administrative
agent.
"COMMITMENT PERCENTAGE" shall mean, as to any Lender, at any time, a
fraction (expressed as a percentage) the numerator of which is the
sum of (A) such Lender's Revolving Credit Commitment (or after the
Termination Date, such Lender's Revolving Credit Loans and RC Term
Loans) and (B) such Lender's Term Loan Commitment (or after the
Closing Date, such Lender's Term Loans), and the denominator of
which is the sum of (x) the aggregate amount of all Revolving Credit
Commitments (or after the Termination Date, all Revolving Credit
Loans and RC Term Loans) and (y) the aggregate amount of all Term
Loan Commitments (or after the Closing Date, all Term Loans), in
each case outstanding at such time.
"CONVERTIBLE REVOLVING CREDIT COMMITMENT" shall mean (a) in the case
of each Lender that is a signatory to Amendment No. 1 to the Credit
Agreement as of June 20, 2002, that portion of such Lender's
Revolving Credit Commitment set forth opposite such Lender's name on
the signature page to such Amendment No. 1 as such Lender's
"Convertible Revolving Credit Commitment" and (b) in the case of any
Lender that becomes a Lender after June 20, 2002, the amount
specified as such Lender's "Convertible Revolving Credit Commitment"
in the Assignment and Assumption Agreement pursuant to which such
Lender assumed a portion of any Lender's Convertible Revolving
Credit Commitment, in each case as the same may be changed from time
to time pursuant to the terms hereof. For the avoidance of doubt,
(1) the Convertible Revolving Credit Commitment, if any, of a Lender
shall constitute a portion of such Lender's Revolving Credit
Commitment (and not an independent commitment)(and any assignment of
a Revolving Credit Commitment which constitutes a Convertible
Revolving Credit Commitment shall be identified as such in the
applicable Assignment and Assumption Agreement), (2) each borrowing
of Revolving Credit Loans (and each issuance of Letters of Credit or
borrowing of Swingline Loans) shall constitute utilization of the
Convertible Revolving Credit Commitments pro rata with Revolving
Credit Commitments of all Lenders (and, in the case of any Lender
holding both a Convertible Revolving Credit Commitment and a
non-Convertible Revolving Credit Commitment, pro rata between both
such Revolving Credit Commitments), and (3) except as expressly
provided in Section 2.5(a) with respect to the Termination Date, any
reduction or termination of the Revolving Credit Commitments in
accordance with the terms of this Agreement shall result in a pro
rata reduction or termination (as applicable) of the Convertible
Revolving Credit Commitments.
"CONVERTIBLE REVOLVING CREDIT LOANS" shall mean Revolving Credit
Loans outstanding under any Convertible Revolving Credit Commitment.
"MATURITY DATE" shall mean the one year anniversary of the
Termination Date.
"NOTE" shall mean, as applicable, a Revolving Credit Note, a Term
Note, an RC Term Note, or a QFL Note.
"NOTICE OF CONVERTIBLE REVOLVING CREDIT LOAN CONVERSION" shall have
the meaning ascribed thereto in Section 2.3(e).
"RC TERM LOANS" shall have the meaning ascribed thereto in Section
2.1(e).
"RC TERM NOTE" shall have the meaning ascribed thereto in Section
2.2 (d).
"REQUIRED LENDERS" shall mean, at any time, Lenders having Term Loan
Commitments (or after the Closing Date, Term Loans) and Revolving
Credit Commitments (or after the Termination Date, Revolving Credit
Loans, RC Term Loans and Revolving Credit Commitment Percentages of
Swingline Loans and LOC Obligations) representing 51% or more of the
aggregate of all Term Loan Commitments (or after the Closing Date,
Term Loans) and Revolving Credit Commitments (or after the
Termination Date , Revolving Credit Loans, RC Term Loans, Swingline
Loans and LOC Obligations) in each case outstanding at such time.
"TERM-OUT LENDERS" shall mean, at any time, those Lenders holding
Convertible Revolving Credit Loans.
"TYPE" shall mean as to any Loan, its nature as a Revolving Credit
Loan, Swingline Loan, Term Loan or an RC Term Loan, or as an
Alternate Base Rate Loan or a Eurodollar Loan, or both, as the
context may require.".
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting the
word "and" at the end of clause (b)(iv) of the definition of "Interest
Period" and by replacing the period at the end of clause (b)(v) thereof
with "; and" and by inserting the following text at the end of the
definition of "Interest Period":
"(vi) no Interest Period with respect to an RC Term Loan shall be
selected which would extend beyond the Maturity Date.".
(c) Section 2.1 of the Credit Agreement is hereby amended by inserting the
following text to appear after Section 2.1(d):
"(e) CONVERSION OF REVOLVING CREDIT LOANS. Subject to the terms and
conditions hereof and if the Borrower so elects in accordance with
the terms hereof, each of the Term-out Lenders severally agrees to
convert its Convertible Revolving Credit Loans then outstanding on
the Termination Date into term loans maturing on the Maturity Date
("RC TERM LOANS"); PROVIDED, that the Borrower may not elect to
convert outstanding Convertible Revolving Credit Loans into RC Term
Loans in an amount which exceeds the aggregate principal amount of
Convertible Revolving Credit Loans outstanding on the third Business
Day prior to the Termination Date. No portion of the RC Term Loans,
once repaid, may be reborrowed.".
(d) Section 2.2 of the Credit Agreement is hereby amended by inserting the
following text to appear after Section 2.2 (c):
" (d) To the extent requested by any Lender in accordance with
clause (a) above, Convertible Revolving Credit Loans made by such
Lender that are converted to RC Term Loans on the Termination Date
shall be evidenced by one or more promissory notes of the Borrower,
each substantially in the form attached hereto as EXHIBIT A-3, with
appropriate insertions as to payee, date and principal amount (an
"RC TERM NOTE"), payable to the order of such Lender and in an
aggregate principal amount equal to the aggregate principal amount
of the RC Term Loans of such Lender then outstanding. Each Lender is
hereby authorized to record the date, Type and amount of each RC
Term 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
RC Term Note, and any such recordation shall constitute PRIMA FACIE
evidence of the accuracy of the information so recorded absent
manifest error. Each RC Term Note shall (i) be dated the Termination
Date, (ii) be stated to mature on the Maturity Date and (iii)
provide for the payment of interest in accordance with SECTION
2.9.",
and by deleting the text "(b) and (c)" which appears at the end of the
first sentence of Section 2.2 (a) and inserting "(b), (c) and (d)" in
place thereof.
(e) Section 2.3 of the Credit Agreement is hereby amended by inserting the
following text to appear after Section 2.3(d):
"(e) The Borrower may elect to convert the then outstanding
Convertible Revolving Credit Loans into RC Term Loans on the
Termination Date; PROVIDED that the Borrower shall give the
Administrative Agent an irrevocable notice substantially in the form
of EXHIBIT B-5 ("NOTICE OF CONVERTIBLE REVOLVING CREDIT LOAN
CONVERSION") (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 Termination Date), specifying (i) the amount to be
converted, (ii) the requested Borrowing Date (which shall be the
Termination Date), (iii) whether the borrowing is to be of
Eurodollar Loans, Alternate Base Rate Loans or a combination
thereof, and (iv) if the conversion is to be entirely or partly of
Eurodollar Loans, the amounts of such Eurodollar Loans and the
lengths of the initial Interest Periods therefor. The RC Term Loans
designated as Eurodollar Loans shall be in amounts equal to
$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 Term-out Lender thereof. Each
Term-out Lender shall be deemed to have made on the Termination Date
an RC Term Loan with a maturity on the Maturity Date in the amount
of its pro rata share of outstanding Convertible Revolving Credit
Loans to be converted in accordance with the terms hereof.".
(f) Section 2.5(a) of the Credit Agreement is hereby deleted in its
entirety and replaced by inserting the following text:
"(a) The Term Loan Commitments shall terminate on the Closing Date
(immediately after funding of the Term Loans). The Revolving Credit
Commitments shall be reduced to zero on the Termination Date,
PROVIDED that, if the Borrower elects to convert Convertible
Revolving Credit Loans to RC Term Loans on the Termination Date
pursuant to Section 2.3, then (i) that portion of the Revolving
Credit Commitments constituting the Convertible Revolving Credit
Commitments shall be permanently reduced to an amount that is equal
to the aggregate principal amount of the resulting RC Term Loans,
(ii) the remaining Revolving Credit Commitments shall terminate on
the Maturity Date and (iii) no additional Loans (other than
Convertible Revolving Credit Loans converted into RC Term Loans on
the Termination Date) shall be made on or after the Termination
Date. The Swingline Commitment shall terminate on the Termination
Date.".
(g) Section 2.6 (a) of the Credit Agreement is hereby amended by replacing
the text "whether the prepayment is of Revolving Credit Loans or Term
Loans or a combination thereof" with the following text:
"whether the prepayment is of Revolving Credit Loans, Term
Loans or a combination thereof or RC Term Loans";
and by adding the following text to appear before the last sentence of the
paragraph
"Any prepayment of RC Term Loans shall automatically reduce the
Revolving Credit Commitments by an amount equal to such prepayment."
(h) Section 2.7 of the Credit Agreement is hereby amended by inserting the
following text after the end of Section 2.7(a)(iii):
"(iv) no RC Term Loan may be converted into a Eurodollar Loan after
the date that is one month prior to the Maturity Date,"
and by replacing the current numeral "(iv)" with "(v)" and the current
numeral " (v)" with "(vi)" respectively.
(i) Section 2.7 of the Credit Agreement is hereby amended by deleting the
word "and" that appears immediately before Section 2.7(b)(iii) and by
inserting the following text after the words "prior to the Termination
Date" located in Section 2.7(b)(iii):
", and (iv) no Eurodollar Loan which is an RC Term Loan may be
continued as a Eurodollar Loan after the date that is one month
prior to the Maturity Date".
(j) Section 2.12 of the Credit Agreement is hereby amended by deleting the
first sentence in its entirety and by inserting the following text:
"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, except as expressly provided in
Section 2.5 (a), 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.".
(k) Section 3.16 of the Credit Agreement is hereby amended by inserting
the following text to appear at the end thereof:
"The proceeds of RC Term Loans will be used solely to refinance
Convertible Revolving Credit Loans outstanding on the Termination
Date as set forth in the Notice of Convertible Revolving Credit Loan
Conversion provided by the Borrower to the Administrative Agent in
accordance with Section 2.3 hereof.".
(l) Section 4.2 of the Credit Agreement is hereby amended by deleting the
first paragraph in its entirety and replacing it with the following:
"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, the
agreement of each Term-out Lender to convert Convertible Revolving
Credit Loans into RC Term Loans, 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,
the conversion of Convertible Revolving Credit Loans into RC Term
Loans, 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:".
(m) Section 6.1 (b) of the Credit Agreement is hereby amended by deleting
the text "Fifth (5th)" and replacing it with the text "Fifth (5th) and
thereafter".
(n) Annex A to the Credit Agreement is hereby amended by inserting the
following text at the end of Annex A:
" In addition, notwithstanding the foregoing, the Applicable Margin
for Eurodollar Loans and the Applicable Margin for Alternate Base
Rate Loans, in each case which are RC Term Loans, shall be the
Applicable Margins as set forth in the table above for each Level
plus 25 basis points."
(o) The Exhibits to the Credit Agreement are amended by inserting Exhibit
B-5, attached hereto, to appear after Exhibit B-4 to the Credit Agreement,
by inserting Exhibit
A-3 attached hereto, to appear after Exhibit A-2 to the Credit Agreement,
and by deleting Exhibit D to the Credit Agreement and inserting Exhibit D
attached hereto in place thereof.
(p) The Table of Contents of the Credit Agreement is amended by inserting
the text "Exhibit B-5 Form of Notice of Convertible Revolving Credit Loan
Conversion" to appear after "Exhibit B-4 Form of Notice of Interest Rate
Conversion" and by inserting the text "Exhibit A-3 Form of RC Term Note"
to appear after "Exhibit A-2 Form of Term Note".
(q) Schedule 6.6 to the Credit Agreement is amended by inserting the
following to appear at the end thereof:
"10. Preferred Securities Guarantee Agreement, dated as of January
31, 2002, by and between NorthWestern Corporation, as Guarantor,
Wilmington Trust Company, as Trustee and NorthWestern Capital
Financing III, as Issuer, with respect to the Preferred Capital
Securities referred to in Item 1(e)(ix) of Schedule 6.10.
11. Common Securities Guarantee Agreement, dated as of January 31,
2002, by the Borrower."
(r) Schedule 6.10 to the Credit Agreement is amended by inserting the
following to appear at the end of item 1(e):
"(ix) 4,440,000 shares of 8.10% Preferred Capital Securities issued
under the Amended and Restated Declaration of Trust of NorthWestern
Capital Financing III, dated as of January 31, 2002.
(x) $114,433,025 of 8.10% subordinated debt securities due 2032
issued pursuant to the Fourth Supplement Indenture, dated as of
January 31, 2002, to the Subordinated Debt Securities Indenture
dated as of August 1, 1995, as amended, between NorthWestern Public
Service Company and The Chase Manhattan Bank (North America), as
Trustee."
SECTION 3 REPRESENTATIONS AND WARRANTIES. The Borrower represents
and warrants as of the date hereof to each of the Administrative Agent and the
Lenders that after giving effect to this Amendment:
(a) The representations and warranties set forth in the Credit
Agreement are true and correct in all material respects except to the
extent such representations and warranties expressly related to an earlier
date;
(b) The Borrower is in compliance in all material respects with all
other terms and provisions contained in the Credit Agreement required to
be observed or performed;
(c) No Default or Event of Default has occurred and is continuing;
(d) The Borrower has the corporate power and authority to execute,
deliver and perform this Amendment and has taken all corporate actions
necessary to authorize the execution, delivery and performance of this
Amendment;
(e) This Amendment has been duly executed and delivered on behalf of
the Borrower by a duly authorized officer or attorney-in-fact of the
Borrower;
(f) The execution, delivery and performance of this Amendment will
not violate any Requirement of Law or any material contractual obligation
binding on the Borrower or any of its Subsidiaries; and
(g) No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the execution, delivery or performance by the
Borrower of this Amendment.
The Borrower acknowledges and agrees that the representations and warranties set
forth above shall survive the execution and delivery hereof and shall be deemed
made in the Credit Agreement for purposes of Section 4.2 of the Credit
Agreement.
SECTION 4 EFFECTIVENESS. This Amendment shall become effective on
the date the Administrative Agent receives (i) counterparts of this Amendment
that, when taken together, bear the signatures of the Borrower and each of the
Lenders constituting the Required Lenders, (ii) for the ratable benefit of each
of Bank of Scotland, CoBank, ACB, and Malayan Banking Berhad, respectively, a
non-refundable fee in an amount equal to 15 basis points (0.15%) of the
aggregate principal amount of the Convertible Revolving Credit Commitment of
each such Lender, if any, and (iii) payment of all of its reasonable
out-of-pocket costs and expenses incurred in connection with this Amendment
(including, without limitation, reasonable fees and expenses of its counsel) for
which invoices have been submitted to the Borrower. The Administrative Agent
shall promptly notify the Borrower and the Lenders of the effective date hereof,
and such notice shall be conclusive and binding on all parties hereto.
SECTION 5 MISCELLANEOUS. (a) Except as expressly set forth herein,
this Amendment shall not, by implication or otherwise, limit, impair, constitute
a waiver of, or otherwise affect the rights and remedies of the Lenders or the
Administrative Agent, under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle the Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement in similar or
different circumstances. This Amendment shall apply and be effective only with
respect to the provisions of the Credit Agreement specifically referred to
herein. Upon this Amendment
becoming effective as provided herein, the term "Loan Document" as defined in
the Credit Agreement shall include, without limitation, this Amendment.
(b) As used in the Credit Agreement, the terms "Agreement,"
"herein," "hereinafter," "hereunder," "hereto," and words of similar
import shall mean, from and after the date hereof, the Credit Agreement as
amended by this Amendment.
(c) Section headings used herein are for convenience of reference
only and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amendment.
(d) THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. The parties hereto each
hereby consents to the non-exclusive jurisdiction of the state and federal
courts of the State of New York and irrevocably waives all right to trial
by jury in any action, proceeding or counterclaim arising out of or
relating to this Amendment.
(e) This Amendment may be executed in any number of counterparts,
each of which shall be an original but all of which, when taken together,
shall constitute but one instrument. Delivery of an executed counterpart
of this Amendment by fax will be deemed as effective delivery of an
originally executed counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
NORTHWESTERN CORPORATION
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Vice President - Finance &
Chief Financial Officer
ADMINISTRATIVE AGENT:
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
Convertible Revolving Credit LENDERS
Commitment:
----------------------------
$ 50,000,000 CREDIT SUISSE FIRST BOSTON, CAYMAN
--------------------------- ISLANDS BRANCH
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
Convertible Revolving Credit
Commitment:
----------------------------
$ 50,000,000 CIBC INC.
---------------------------
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
CIBC World Markets Corp.,
as Agent
Convertible Revolving Credit
Commitment:
----------------------------
$ 50,000,000 ABN AMRO BANK N.V.
---------------------------
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxx X.X. Xxx Xxxx
----------------------------------
Name: Xxxxx X.X. Xxx Xxxx
Title: Assistant Vice President
Convertible Revolving Credit
Commitment:
----------------------------
$ 50,000,000 BARCLAYS BANK PLC
---------------------------
By: /s/ Sydney X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
Convertible Revolving Credit
Commitment:
----------------------------
$ NIL BANK OF SCOTLAND
---------------------------
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Associate Director of
Corporate Banking
Convertible Revolving Credit
Commitment:
----------------------------
$ 0 CoBANK, ACB
---------------------------
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Assistant Vice President
Convertible Revolving Credit
Commitment:
----------------------------
$ 25.0 MILLION MALAYAN BANKING BERHAD
---------------------------
By: /s/ Wan Fadzmi Xxx Xxxxxx
----------------------------------
Name: Wan Fadzmi Xxx Xxxxxx
Title: General Manager
EXHIBIT B-5
TO CREDIT
AGREEMENT
FORM OF NOTICE OF CONVERTIBLE REVOLVING CREDIT LOAN CONVERSION
Credit Suisse First Boston,
as Administrative Agent for the below-referenced Lenders
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: [_________________]
NORTHWESTERN CORPORATION
Gentlemen and Ladies:
This Notice of Convertible Revolving Credit Loan Conversion is
delivered to you pursuant to SECTION 2.3 of the Credit Agreement, dated as of
January 14, 2002 (together with all amendments, supplements, amendment and
restatements and other modifications, if any, from time to time made thereto,
the "CREDIT AGREEMENT"), 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. Unless otherwise defined herein or the
context otherwise requires, defined terms used herein have the meanings provided
in the Credit Agreement.
The Borrower hereby requests that on _____________, _____
(the "Borrowing Date"):(1)
(1) $ ___________ of the currently outstanding principal amount of
the Convertible Revolving Credit Loans be converted into RC Term Loans.
(2) [$___________ of such RC Term Loans shall be Eurodollar
Loans.](2) [The initial Interest Period for such Eurodollar Loans is requested
to be a [one] [two] [three] or [six] month period.]
[AND/OR]
[$ ________ of such RC Term Loans shall be Alternate Base
Rate Loans.]
-------------------------------
(1) The Borrowing Date for the conversion of Convertible
Revolving Credit Loans to RC Term Loans shall be the Termination Date.
(2) RC Term Loans designated as Eurodollar Loans shall be in amounts
equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
EXHIBIT B-5
(3) The undersigned hereby certifies that, as of the Borrowing Date,
all the applicable conditions contained in Section 4.2 of the Credit Agreement
have been satisfied (or waived pursuant to Section 9.1 of the Credit Agreement).
EXHIBIT B-5
IN WITNESS WHEREOF, the Borrower has caused this Notice of
Convertible Revolving Credit Loan Conversion to be executed and delivered, and
the certification, representations and warranties contained herein to be made,
by an authorized officer this ______ day of ____________, _______.
NORTHWESTERN CORPORATION
By:
---------------------------
Name:
Title:
EXHIBIT B-5
EXHIBIT A-3
TO CREDIT AGREEMENT
FORM OF RC TERM NOTE
$__________ New York, New York
[__________], 200_
FOR VALUE RECEIVED, the undersigned, NORTHWESTERN CORPORATION, a
Delaware corporation, with its principal place of business at 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxx Xxxxx, Xxxxx Xxxxxx 00000-0000 (the "BORROWER"),
hereby unconditionally promises to pay to the order of ___________________, with
a place of business at ______________________________ (the "LENDER"), by wire
transfer to the account of Credit Suisse First Boston, as Administrative Agent
(as defined in the Credit Agreement referred to below), with [ACCOUNT BANK], ABA
NO. [o], Account No. [o], Attn: Agency, Reference: [o], or at such other place
or places and to such account or accounts as the Administrative Agent, may
direct from time to time by notice to the Borrower in accordance with the Credit
Agreement (as hereinafter defined), in lawful money of the United States of
America and in immediately available funds, the principal amount of the lesser
of (a) _______________ DOLLARS ($____________) and (b) the aggregate unpaid
principal amount of all RC 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 Maturity 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 RC Term Note in
accordance with the Credit Agreement.
This RC Term Note is one of the RC 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
RC 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 RC Term Note in respect thereof.
A-3-1
Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts remaining unpaid on this RC 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 RC 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 RC 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 RC 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-3-2
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.
For the avoidance of doubt, the Assignee expressly acknowledges and
agrees to be bound by the terms of the Credit Agreement applicable to the
Assigned Interest, including, without limitation, the terms of the Credit
Agreement applicable to the Assigned Interest that constitute Convertible
Revolving Credit Commitments or Convertible Revolving Credit Loans.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund(3)]
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
----------
(3) Select as applicable.
Exhibit D
parties thereto (including the Lender), and the
Administrative Agent
Exhibit D
6. Assigned Interest:
---------------------------------------------------------------------------------
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned for All Lenders Assigned Commitment/loans(4)
----------------- --------------- -------- ----------------
---------------------------------------------------------------------------------
Revolving Credit $_____________ $_____________ __________%
Commitment
(of which the
following
constitutes
Convertible
Revolving Credit
Commitment
$_____________ $_____________ __________%
---------------------------------------------------------------------------------
Term Loan Commitment $_____________ $_____________ __________%
---------------------------------------------------------------------------------
[Name of Assignor]
Revised Revolving Credit Commitment Amount: $______________
------------------------------------------
(of which the following constitutes Revised
Convertible Revolving 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: $______________
--------------------------------------
(of which the following constitutes New
Convertible Revolving Commitment Amount: $______________)
----------------------------------------
New Revolving Credit Commitment Percentage:
------------------------------------------ ______________%
[New Term Loan Commitment Amount: $______________]
-------------------------------
--------------------------------------
(4) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
Exhibit D
[New Term Loan Commitment Percentage: _____________%]
-----------------------------------
Revised Term Loan Amount: $______________
ADDRESS FOR NOTICES FOR ASSIGNEE:
[Address]
Attention: _____________
Telephone: _____________
Telecopy: ______________
Telephone
Confirmation:___________
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:
Exhibit D
Consented to and Accepted:
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
[Consented to:](5)
NORTHWESTERN CORPORATION
By_________________________________
Name:
Title:
--------------------------------
(5) 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.
Exhibit D
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
Exhibit D
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 D
