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EXHIBIT 10.14
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GUARANTY AGREEMENT
Dated as of June 30, 2000
by
NORTHWESTERN CORPORATION
in favor of
BANK OF AMERICA, N.A.,
as Agent
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GUARANTY AGREEMENT
This GUARANTY AGREEMENT (this "GUARANTY"), dated as of June
30, 2000, is made by NorthWestern Corporation, a Delaware corporation (the
"GUARANTOR"), in favor of Bank of America, N.A., as agent for the Lenders named
in the Credit Agreement referred to below (in such capacity, together with its
successors in such capacity, the "AGENT").
The Refunding Credit Agreement, dated as of November 20, 1998
(as the same may be amended, restated, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"), among Cornerstone Propane, L.P., a
Delaware limited partnership (the "BORROWER"), the Lenders named therein
(individually, a "Lender" and, collectively, the "LENDERS") and the Agent,
provides, on its terms and subject to its conditions, for loans to be made by
the Lenders to the Borrower in an aggregate principal amount not exceeding
$110,000,000.
The Guarantor indirectly owns 100% of Cornerstone Propane GP,
Inc., the managing general partner of the Borrower, and 82.5% of SYN Inc., the
special general partner of the Borrower. Cornerstone Propane GP, Inc. and SYN
Inc. collectively own a 1.0101% general partner interest in the Borrower.
The Agent and the Lenders would not enter into that certain
First Amendment to Refunding Credit Agreement, dated as of June 30, 2000, with
the Borrower without the Guarantor executing and delivering this Guaranty.
To induce the Agent and the Lenders to continue to extend
credit under the Credit Agreement and the other Loan Documents, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor has agreed to guarantee the Guarantied Obligations
(as defined below) to the extent herein provided upon the terms and conditions
of this Guaranty. Accordingly, the Guarantor agrees with the Agent and the
Lenders as follows:
SECTION 1. DEFINITIONS.
1.01. DEFINITIONS. Unless otherwise defined herein, all
capitalized terms used in this Guaranty that are defined in the Credit
Agreement (including those terms incorporated by reference) shall have
the respective meanings assigned to them in the Credit Agreement. In
addition, the following terms shall have the following meanings under
this Guaranty:
"BANKRUPTCY CODE" shall mean Title 11 of the United States
Code, as amended.
"GUARANTIED OBLIGATIONS" shall mean any and all Obligations in
respect of principal of Loans payable under the Credit Agreement, it being
acknowledged by the Guarantor that certain extensions of credit under the Credit
Agreement are available on a revolving basis
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and that the Agent and the Lenders shall have the right to apply amounts paid
pursuant to the terms hereof to such of the Guarantied Obligations as they
shall determine.
1.02. INTERPRETATION. In this Guaranty, unless otherwise
indicated, the singular includes the plural and plural the singular;
words importing any gender include the other gender; references to
statutes or regulations are to be construed as including all statutory
or regulatory provisions consolidating, amending or replacing the
statute or regulation referred to; references to "writing" include
printing, typing, lithography and other means of reproducing words in a
tangible visible form; the words "including," "includes" and "include"
shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections),
exhibits, annexes or schedules are to this Guaranty; references to
agreements and other contractual instruments shall be deemed to include
all subsequent amendments, extensions and other modifications to such
instruments; and references to Persons include their respective
successors and permitted assigns and, in the case of Governmental
Authorities, Persons succeeding to their respective functions and
capacities.
SECTION 2. THE GUARANTEE.
2.01. GUARANTEE. The Guarantor hereby guarantees to the
Agent and each Lender the timely payment in full when due (whether at
stated maturity, by acceleration or otherwise) of the Guarantied
Obligations up to but not exceeding the Guarantied Amount (as defined
in SECTION 2.09 below) then in effect, in each case strictly in
accordance with their terms. The Guarantor hereby further agrees that
if the Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) all or any part of the
Guarantied Obligations, the Guarantor will immediately pay the same up
to but not exceeding the Guarantied Amount, without any demand or
notice whatsoever, and that in the case of any extension of time of
payment or renewal of all or any part of the Guarantied Obligations,
the same will be timely paid in full when due (whether at extended
maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal. To the fullest extent permitted by law, this
Guaranty is absolute, irrevocable and unconditional in nature and is
made with respect to any and all Guarantied Obligations now existing or
in the future arising. The Guarantor's liability under this Guaranty
shall continue until full satisfaction of the Guarantor's obligations
hereunder. This Guaranty is a guarantee of due and punctual payment and
performance and not of collectibility.
2.02. ACKNOWLEDGMENTS, WAIVERS AND CONSENTS. The Guarantor
acknowledges that the obligations undertaken by it under this Guaranty
involve the guarantee of obligations of Persons other than the
Guarantor and that such obligations of the Guarantor are, to the
fullest extent permitted by law, absolute, irrevocable and
unconditional under any and all circumstances. In full recognition and
in furtherance of the foregoing, the Guarantor agrees, to the fullest
extent permitted by law, that:
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(a) Without affecting the enforceability or effectiveness of this
Guaranty in accordance with its terms and without affecting, limiting,
reducing, discharging or terminating the liability of the Guarantor, or
the rights, remedies, powers and privileges of the Agent and the
Lenders under this Guaranty, the Agent and the Lenders may, at any time
and from time to time and without notice (except as provided in Section
2.12) or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew,
waive, accelerate or otherwise change the time for payment or
performance of, or the terms of, all or any part of the Guarantied
Obligations (including any increase or decrease in the principal
portion of, or rate or rates of interest on, all or any part of the
Guarantied Obligations);
(ii) amend, supplement, modify, extend, renew,
waive or otherwise change, or enter into or give, any Loan Document or
any agreement, security document, guarantee, approval, consent or other
instrument with respect to all or any part of the Guarantied
Obligations, any Loan Document or any such other instrument or any term
or provision of the foregoing;
(iii) accept or enter into new or additional
agreements, security documents, guarantees (including letters of
credit) or other instruments in addition to, in exchange for or
relative to any Loan Document, all or any part of the Guarantied
Obligations or any collateral now or in the future serving as security
for the Guarantied Obligations;
(iv) accept or receive (including from any other
guarantor) partial payments or performance on the Guarantied
Obligations (whether as a result of the exercise of any right, remedy,
power or privilege or otherwise);
(v) accept, receive and hold any additional
collateral for all or any part of the Guarantied Obligations (including
from any other guarantor);
(vi) release, reconvey, terminate, waive,
abandon, allow to lapse or expire, fail to perfect, subordinate,
exchange, substitute, transfer, foreclose upon or enforce any
collateral, security documents or guarantees (including letters of
credit or the obligations of any other guarantor) for or relative to
all or any part of the Guarantied Obligations;
(vii) apply any collateral or the proceeds of any
collateral or guarantee (including any letter of credit or the
obligations of any other guarantor) to all or any part of the
Guarantied Obligations in such manner and extent as the Agent or any
Lender may in its discretion determine;
(viii) release any Person (including any other
guarantor) from any personal liability with respect to all or any part
of the Guarantied Obligations;
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(ix) settle, compromise, release, liquidate or
enforce upon such terms and in such manner as the Agent or the Lenders
may determine or as applicable law may dictate all or any part of the
Guarantied Obligations or any collateral on or guarantee of (including
any letter of credit issued with respect to) all or any part of the
Guarantied Obligations (including with any other guarantor);
(x) consent to the merger or consolidation of,
the sale of substantial assets by, or other restructuring or
termination of the existence of the Borrower or any other Person
(including any other guarantor);
(xi) proceed against the Borrower, the Guarantor
or any other guarantor of (including any issuer of any letter of credit
issued with respect to) all or any part of the Guarantied Obligations
or any collateral provided by any Person and exercise the rights,
remedies, powers and privileges of the Agent and the Lenders under the
Loan Documents or otherwise in such order and such manner as the Agent
or any Lender may, in its discretion, determine, without any necessity
to proceed upon or against or exhaust any collateral, right, remedy,
power or privilege before proceeding to call upon or otherwise enforce
this Guaranty as to any guarantor;
(xii) foreclose upon any deed of trust, mortgage
or other instrument creating or granting liens on any interest in real
property by judicial or nonjudicial sale or by deed in lieu of
foreclosure, bid any amount or make no bid in any foreclosure sale or
make any other election of remedies with respect to such liens or
exercise any right of set-off;
(xiii) obtain the appointment of a receiver with
respect to any collateral for all or any part of the Guarantied
Obligations and apply the proceeds of such receivership as the Agent or
any Lender may in its discretion determine (it being agreed that
nothing in this clause (xiii) shall be deemed to make the Agent or any
Lender a party in possession in contemplation of law, except at its
option);
(xiv) enter into such other transactions or
business dealings with the Borrower, any Subsidiary or Affiliate of the
Borrower or any other guarantor of all or any part of the Guarantied
Obligations as the Agent or any Lender may desire; and
(xv) do all or any combination of the actions set
forth in this SECTION 2.02(a).
(b) To the fullest extent permitted by law, the enforceability and
effectiveness of this Guaranty and the liability of the Guarantor, and
the rights, remedies, powers and privileges of the Agent and the
Lenders, under this Guaranty shall not be affected, limited, reduced,
discharged or terminated, and the Guarantor hereby expressly waives any
defense now or in the future arising, by reason of:
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(i) the illegality, invalidity or
unenforceability of all or any part of the Guarantied Obligations, any
Loan Document or any agreement, security document, guarantee or other
instrument relative to all or any part of the Guarantied Obligations;
(ii) any disability or other defense with respect
to all or any part of the Guarantied Obligations of the Borrower, or
any other guarantor of all or any part of the Guarantied Obligations
(including any issuer of any letters of credit), including the effect
of any statute of limitations that may bar the enforcement of all or
any part of the Guarantied Obligations or the obligations of any such
other guarantor;
(iii) the illegality, invalidity or
unenforceability of any security or guarantee (including any letter of
credit) for all or any part of the Guarantied Obligations or the lack
of perfection or continuing perfection or failure of the priority of
any lien on any collateral for all or any part of the Guarantied
Obligations;
(iv) the cessation, for any cause whatsoever, of
the liability of the Borrower or any other guarantor of all or any part
of the Guarantied Obligations (other than, subject to SECTION 2.05, by
reason of the full payment and performance of all Guarantied
Obligations);
(v) any failure of the Agent or any Lender to
marshal assets in favor of the Borrower or any other Person (including
any other guarantor), to exhaust any collateral for all or any part of
the Guarantied Obligations, to pursue or exhaust any right, remedy,
power or privilege it may have against the Borrower, any other
guarantor of all or any part of the Guarantied Obligations (including
any issuer of any Letter of Credit) or any other Person or to take any
action whatsoever to mitigate or reduce such or any other the
Guarantor's liability under this Guaranty, neither the Agent nor any
Lender being under any obligation to take any such action
notwithstanding the fact that all or any part of the Guarantied
Obligations may be due and payable and that the Borrower may be in
default of their obligations under any Loan Document;
(vi) any failure of the Agent or any Lender to
give notice of sale or other disposition of any collateral (including
any notice of any judicial or nonjudicial foreclosure or sale of any
interest in real property serving as collateral for all or any part of
the Guarantied Obligations) for all or any part of the Guarantied
Obligations to the Borrower, the Guarantor or any other Person or any
defect in, or any failure by the Guarantor or any other Person to
receive, any notice that may be given in connection with any sale or
disposition of any collateral;
(vii) any failure of the Agent or any Lender to
comply with applicable laws in connection with the sale or other
disposition of any collateral for all or any part of the Guarantied
Obligations;
(viii) any judicial or nonjudicial foreclosure or
sale of, or other election of remedies with respect to, any interest in
real property or other collateral
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serving as security for all or any part of the Guarantied Obligations,
even though such foreclosure, sale or election of remedies may impair
the subrogation rights of the Guarantor or may preclude the Guarantor
from obtaining reimbursement, contribution, indemnification or other
recovery from the Borrower, any other guarantor or any other Person
and even though the Borrower may not, as a result of such foreclosure,
sale or election of remedies, be liable for any deficiency;
(ix) any benefits the Borrower, the Guarantor or
any other guarantor may otherwise derive from Section 580a, 580b, 580d
or 726 of the California Code of Civil Procedure or any comparable
provisions of the laws of any other jurisdiction;
(x) any act or omission of the Agent, any Lender
or any other Person that directly or indirectly results in or aids the
discharge or release of the Borrower or any other guarantor of all or
any part of the Guarantied Obligations or any security or guarantee
(including any Letter of Credit) for all or any part of the Guarantied
Obligations by operation of law or otherwise;
(xi) any law which provides that the obligation
of a surety or guarantor must neither be larger in amount nor in other
respects more burdensome than that of the principal or which reduces a
surety's or guarantor's obligation in proportion to the principal
obligation;
(xii) the possibility that the obligations of the
Borrower to the Agent and the Lenders may at any time and from time to
time exceed the aggregate liability of the Guarantor under this
Guaranty;
(xiii) any counterclaim, set-off or other claim
which the Borrower or any other guarantor has or alleges to have with
respect to all or any part of the Guarantied Obligations;
(xiv) any failure of the Agent or any Lender to
file or enforce a claim in any bankruptcy or other proceeding with
respect to any Person;
(xv) any extension of credit or the grant of any
Lien under Section 364 of the Bankruptcy Code;
(xvi) any use of cash collateral under Section 363
of the Bankruptcy Code;
(xvii) any agreement or stipulation with respect to
the provision of adequate protection in any bankruptcy proceeding of
any Person;
(xviii) the avoidance of any Lien in favor of the
Agent or any Lender for any reason;
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(xix) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against any Person, including any discharge
of, or bar or stay against collecting, all or any part of the
Guarantied Obligations (or any interest on all or any part of the
Guarantied Obligations) in or as a result of any such proceeding;
(xx) any action taken by the Agent or any Lender,
whether similar or dissimilar to any of the foregoing, that is
authorized by this SECTION 2.02 or otherwise in this Guaranty or by any
other provision of any Loan Document or any omission to take any such
action; or
(xxi) any other circumstance whatsoever, whether
similar or dissimilar to any of the foregoing, that might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor, including by reason of California Civil Code Sections 2787
to 2855, inclusive, and California Code of Civil Procedure Sections
580a, 580b, 580d or 726, and all successor sections and any future
judicial decisions or legislation or of any comparable provisions of
the laws of any other jurisdiction.
(c) To the fullest extent permitted by law, the Guarantor
expressly waives, for the benefit of the Agent and the Lenders, all
set-offs and counterclaims and all presentments, demands for payment or
performance, notices of nonpayment or nonperformance, protests, notices
of protest, notices of dishonor and all other notices or demands of any
kind or nature whatsoever with respect to the Guarantied Obligations,
and all notices of acceptance of this Guaranty or of the existence,
creation, incurring or assumption of new or additional Guarantied
Obligations. To the fullest extent permitted by law, the Guarantor
further expressly waives the benefit of any and all statutes of
limitation and any and all laws providing for the exemption of property
from execution or for valuation and appraisal upon foreclosure.
(d) The Guarantor represents and warrants to the Agent and the
Lenders that it has established adequate means of obtaining financial
and other information pertaining to the business, operations and
condition (financial and otherwise) of the Borrower and its properties
on a continuing basis and that the Guarantor is now and will in the
future remain fully familiar with the business, operations and
condition (financial and otherwise) of the Borrower and its properties.
The Guarantor further represents and warrants that it has reviewed and
approved each of the Loan Documents and is fully familiar with the
transactions contemplated by the Loan Documents and that it will in the
future remain fully familiar with such transactions and with any new
Loan Documents and the transactions contemplated by such Loan
Documents. The Guarantor hereby expressly waives and relinquishes any
duty on the part of the Agent or the Lenders (should any such duty
exist) to disclose to the Guarantor or any other guarantor any matter
of fact or other information related to the business, operations or
condition (financial or otherwise) of the Borrower or its properties or
to any Loan Document or the transactions undertaken pursuant to, or
contemplated by, any such Loan Document, whether now or in the future
known by the Agent or any Lender.
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(e) The Guarantor intends that its rights and obligations shall be
those expressly set forth in this Guaranty and that, to the fullest
extent permitted by law, its obligations shall not be affected,
limited, reduced, discharged or terminated by reason of any principles
or provisions of law which conflict with the terms of this Guaranty.
(f) The Guarantor acknowledges that it benefits from the
extensions of credit made and to be made by the Lenders to the Borrower
under the Credit Agreement and the other Loan Documents.
2.03. UNDERSTANDING WITH RESPECT TO WAIVERS AND CONSENTS.
The Guarantor warrants and agrees that each of the waivers and consents
set forth in this Guaranty is made voluntarily and unconditionally
after consultation with outside legal counsel and with full knowledge
of its significance and consequences, with the understanding that
events giving rise to any defense or right waived may diminish, destroy
or otherwise adversely affect rights which such or any other guarantor
otherwise may have against the Borrower, the Agent, any Lender or any
other Person or against any collateral. If, notwithstanding the intent
of the parties that the terms of this Guaranty shall control in any and
all circumstances, any such waivers or consents are determined to be
unenforceable under applicable law, such waivers and consents shall be
effective to the maximum extent permitted by law.
2.04. SUBROGATION. The Guarantor hereby agrees that, until
the payment and satisfaction in full of all of the Obligations and the
expiration and termination of the Commitments of the Lenders under the
Credit Agreement, it shall not exercise any right, remedy, power or
privilege, such as any right of subrogation, contribution or indemnity
or related remedy, power or privilege, arising (whether by contract or
operation of law, including under the Bankruptcy Code) against the
Borrower or any other guarantor of all or any part of the Guarantied
Obligations or any collateral for all or any part of the Guarantied
Obligations by reason of any payment or other performance pursuant to
the provisions of this Guaranty and, if any amount shall be paid to the
Guarantor on account of such rights, remedies, powers or privileges, it
shall hold such amount in trust for the benefit of, and pay the same
over to, the Agent (for the benefit of the Lenders) on account of the
Guarantied Obligations. The Guarantor understands that the exercise by
the Agent or any Bank of any right, remedy, power or privilege that it
may have under the Loan Documents, any agreement, security document,
guarantee or other instrument relative to all or any part of the
Guarantied Obligations or otherwise may affect or eliminate such or any
other guarantor's right of subrogation or similar recovery against the
Borrower, any other guarantors or any collateral and that the Guarantor
may therefore incur partially or totally nonreimbursable liability
under this Guaranty. Nevertheless, the Guarantor hereby authorizes and
empowers the Agent and the Lenders to exercise, in its or their sole
discretion, any combination of such rights, remedies, powers and
privileges. Upon payment in full of the Obligations and the expiration
and termination of the Commitments of the Lenders under the Credit
Agreement, the Agent and the Lenders will cooperate with the Guarantor
in exercising the Guarantor's rights of subrogation including, without
limitation, executing such appropriate instruments of
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assignment of the Guarantied Obligations the Guarantor has paid and
the Liens on Collateral for the same as Guarantor may reasonably
request.
2.05. REINSTATEMENT. To the fullest extent permitted by
law, the obligations of the Guarantor under this Guaranty shall be
automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Borrower, any other guarantor or any
other Person or any other application of funds (including the proceeds
of any collateral for all or any part of the Guarantied Obligations) in
respect of all or any part of the Guarantied Obligations or any amount
paid under SECTION 2.12(b) or 2.14 is rescinded or must be otherwise
restored by any holder of such Guarantied Obligations, whether as a
result of any proceedings in bankruptcy, reorganization or otherwise
and the Guarantor agrees that it will indemnify the Agent and each
Lender on demand for all reasonable costs and expenses (including fees
and expenses of counsel) incurred by the Agent or such Lender in
connection with such rescission or restoration.
2.06. REMEDIES. The Guarantor hereby agrees that, as
between it and the Agent and the Lenders, the obligations of the
Borrower under the Credit Agreement and the other Loan Documents may be
declared to be forthwith (or may become automatically) due and payable
as provided in ARTICLE IX of the Credit Agreement for purposes of
SECTION 2.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations becoming due and
payable as against the Borrower) and that, in the event of such
declaration (or such obligation being deemed due and payable), such
obligations (whether or not due and payable by the Borrower) shall
forthwith become due and payable for purposes of SECTION 2.01.
2.07. SEPARATE ACTION. To the fullest extent permitted by
law, the Agent (or if there is no Agent, the Required Lenders) may
bring and prosecute a separate action or actions against the Guarantor
whether or not the Borrower, any other guarantor or any other Person is
joined in any such action or a separate action or actions are brought
against the Borrower, any other guarantor, any other Person, or any
collateral for all or any part of the Guarantied Obligations. The
obligations of the Guarantor under, and the effectiveness of, this
Guaranty are not conditioned upon the existence or continuation of any
other guarantee (including any letter of credit) of all or any part of
the Guarantied Obligations. By its acceptance hereof, each Lender
agrees that this Guaranty may be enforced only by action of the Agent
upon the instructions of the Required Lenders (or if there is no Agent,
the Required Lenders) and that no Lender shall have any right
individually to seek to enforce or to enforce this Guaranty.
2.08. SUBORDINATION OF INDEBTEDNESS OF THE BORROWER AND THE
RESTRICTED SUBSIDIARIES. The Guarantor agrees that any indebtedness of
the Borrower or the Restricted Subsidiaries now or in the future owed
to the Guarantor is hereby subordinated to the Guarantied Obligations
(to the extent of the Guarantied Amount), enforceable in accordance
with the terms of this SECTION 2.08. At any time when the Agent shall
have demanded payment under this Guaranty in accordance with its terms,
if the Agent so requests in a writing delivered to the Guarantor unless
and until the
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Guarantor's obligations hereunder shall have been paid in full, any
such indebtedness collected by the Guarantor shall be collected, and
any such indebtedness then or thereafter due and payable and not paid
when due shall be enforced and payments thereon received, by the
Guarantor as trustee for the Agent and shall, so long as such
application is not prevented by an injunction, stay or other court
order, be paid over to the Agent (for the benefit of the Lenders) in
kind for application to the Guarantor's obligations hereunder and by
acceptance of any such payment, the Agent, on behalf of the Lenders,
agrees that the same will be so applied so long as the Borrower has
effectively consented to such application. If, after the Agent's
request, the Guarantor fails to collect or enforce any such
indebtedness or to pay the proceeds of such indebtedness to the Agent,
the Agent as the Guarantor's attorney-in-fact may do such acts and sign
such documents in the Guarantor's name and on the Guarantor's behalf as
the Agent reasonably considers necessary or desirable to effect such
collection, enforcement or payment, the Agent being hereby appointed
the Guarantor's attorney-in-fact for such purpose.
2.09. LIMITATION ON GUARANTEE. Notwithstanding any other
provision of this Guaranty to the contrary, the aggregate amount that
the Guarantor may be required to pay under this Guaranty shall not
exceed $40,000,000 or such amount, greater than $40,000,000, as the
Guarantor may most recently have specified in a written notice given to
the Agent (the "GUARANTIED AMOUNT"), together with any interest on
overdue amounts and costs and expenses (including fees and expenses of
counsel) payable under SECTION 5.03 hereof; PROVIDED, that the
Guarantied Amount shall be reduced on a dollar for dollar basis by
amounts turned over to the Agent pursuant to SECTION 2.08 for
application to the Guarantied Obligations as contemplated by said
SECTION 2.08 unless such application has not been effectively consented
to by the Borrower or is prevented by an injunction, stay or other
court order; and, PROVIDED, FURTHER, that so long as no Event of
Default has occurred and is continuing and no Event of Default would
result from such reduction and the Guarantor is in compliance with all
of its material obligations hereunder, the Guarantor may from time to
time reduce the Guarantied Amount to an amount not less than
$40,000,000 upon five Business Days' written notice to the Agent.
Except as set forth in the preceding sentence, the Guarantor shall have
no other payment obligation under this Guaranty, including SECTIONS
2.08 and 2.11. It is expressly intended and agreed by the Guarantor
that the obligations and liability of the Guarantor hereunder cover
only a portion of the Obligations and that the Obligations are and may
continue to be in excess of the Guarantied Obligations. Accordingly, if
at any time the amount of the Obligations exceeds the amount of the
Guarantied Obligations, the Agent shall have the right, at its sole and
absolute discretion, to apply any amounts received by the Agent, for
the benefit of the Lenders, in repayment of the Obligations from any
source other than the Guarantor or the Borrower as an obligor of the
Guarantor to the extent provided in SECTION 2.08, first to any portion
of the Obligations that is not a portion of the Guarantied Obligations
and only after those portions of the Obligations that are not part of
the Guarantied Obligations have been indefeasibly paid in full, apply
any such repayments to the reduce the Guarantied Obligations. In no
event shall
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amounts applied to any portion of the Obligations that is not part of
the Guarantied Obligations reduce the Guarantor's liability hereunder.
2.10. REVOCATION. To the fullest extent permitted by law,
the Guarantor hereby waives all right of revocation with respect to the
Guarantied Obligations (it being understood and agreed that no
reduction of the Guarantied Amount to an amount not less than
$40,000,000 to the extent permitted under SECTION 2.09 shall constitute
a revocation for purposes of this sentence).
2.11. RIGHT TO OFFSET BALANCES. The Guarantor agrees that,
in addition to (and without any limitation of) any right of set-off,
banker's lien or counterclaim a Lender may otherwise have, each Lender
shall be entitled, at its option but only with the prior written
consent of the Required Lenders or the Agent, to offset balances held
by it for the account of the Guarantor at any of its offices, in
Dollars or in any other currency, against any Obligations of the
Borrower to such Lender that are not paid when due (regardless of
whether such balances are then due to the Guarantor). Any Lender so
entitled shall promptly notify the Guarantor and the Agent of any
offset effected by it; PROVIDED, HOWEVER, that such Bank's failure to
give such notice shall not affect the validity of such offset.
2.12. NOTICE PRIOR TO CERTAIN ACTIONS; PURCHASE OF LOANS BY
THE GUARANTOR.
(a) The Agent agrees to provide not less than 30 days' written
notice to the Guarantor (an "ACTION NOTICE") prior to taking any of the
following actions (provided that no such notice need be given with
respect to any of the following actions that has been agreed or
consented to in writing by the Borrower in advance of the taking
thereof): releasing, reconveying, terminating, waiving, subordinating,
exchanging, substituting, transferring, settling, compromising,
releasing, liquidating, foreclosing upon or enforcing any collateral
for all or any part of the Guarantied Obligations; PROVIDED, HOWEVER,
that the Agent may provide less than 30 days' (but under no
circumstances less than 10 days') prior written notice of any such
action to the Guarantor if the Agent reasonably determines that
providing a full 30 days' prior notice would materially and adversely
affect the interests of the Agent and the Lenders. The failure of the
Agent to give any such prior notice when required shall not relieve the
Guarantor of its liability hereunder except to the extent that the
action taken reduces or eliminates subrogation rights which the
Guarantor has obtained, or would obtain, by virtue of payments made or
required to be made by it under this Guaranty.
(b) Upon the receipt of an Action Notice, the Guarantor may, by
prior facsimile notice (confirmed in writing) to the Agent (a "PURCHASE
NOTICE"), elect:
(i) to purchase, without recourse, all of the
Commitments and the Loans ratably from the Lenders pursuant to Section
11.11.3 of the Credit Agreement at a price equal to 100% of the
principal amount thereof plus fees then owing and accrued and unpaid
interest calculated to the date of such purchase specified
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in the Purchase Notice (which purchase date shall be a date not more
than ten (10) days from the date the Purchase Notice is telecopied to
the Agent), together with the provision of cash collateral or the
making of other arrangements satisfactory to the Issuer in its sole
discretion with respect to the maximum aggregate amount that is or at
any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall
have presented, or shall be entitled at such time to present, the
drafts or other documents required to draw under such Letters of
Credit); or
(ii) to purchase, without recourse, a portion of
the Loans ratably from the Lenders at a price equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon
calculated to the date of such purchase specified in the Purchase
Notice (which purchase date shall be a date not more than ten (10) days
from the date the Purchase Notice is telecopied to the Agent), an
undivided participating interest in all of the right, title and
interest of the Lenders in the Loans (collectively, the "PARTICIPATING
INTERESTS").
If the Guarantor makes either of the foregoing elections, the Lenders shall sell
to the Guarantor on a ratable basis their Loans or a Participating Interest in
their Loans, as the case may be, in such amounts as requested by the Guarantor
in its notice to the Agent. Subject to SECTION 2.05, this Guaranty shall
automatically terminate upon the consummation of any purchase of all of the
Commitments and the Loans and the provision of cash collateral or the making of
other arrangements satisfactory to the Issuer with respect to outstanding
Letters of Credit, in each case pursuant to SECTION 2.12(b)(i).
2.13. PARTICIPATING INTERESTS. In the event the Guarantor
elects to purchase Participating Interests pursuant to SECTION
2.12(b)(ii):
(a) (i) All rights of the Guarantor to receive any payment or
other recovery with respect to its Participating Interests (including,
without limitation, any distribution in respect of proceeds of
Collateral and any subrogation, contribution or reimbursement claims)
are hereby made expressly subordinate to the rights of the Lenders to
receive payment (including, without limitation, in respect of
distributions of proceeds of Collateral or other recovery) in full in
cash of the Obligations owing to them; and
(ii) no Lender selling a Participating Interest
shall be under any Obligation to pay any amount in respect of such Participating
Interest to the Guarantor until such Lender has received payment in full in cash
of all Obligations owing to such Lender and the Commitments of such Lender have
been terminated.
(b) With respect to any Loans in which the Guarantor has purchased
a Participating Interest, the Guarantor shall have all of the rights
and privileges of a Participant; provided, however, that for purposes
of the Credit Agreement, the Intercreditor Agreement and the other Loan
Documents, until the Commitments shall have been terminated and the
Obligations owing to the Lenders shall have been paid in full in cash:
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(i) The Guarantor shall not be entitled to
require any Lender to take or refrain from taking any action under the
Credit Agreement (including, without limitation, in respect of Section
11.1 thereof) or under any other Loan Document;
(ii) The Guarantor shall not be considered a
Lender for any purpose of the Credit Agreement (including, without
limitation, for purposes of Sections 5.3, 5.4, 5.5, 5.6, 5.8, 11.3 and
11.4 thereof), the Intercreditor Agreement or any other Loan Document;
and
(iii) The Guarantor shall have no right or
obligation under Section 5.9 of the Credit Agreement and no obligation
pursuant to Section 10.7 of the Credit Agreement.
(c) The Lenders shall have no responsibilities except those
expressly set forth herein or in the Credit Agreement and the documents
related thereto. The Lenders shall not be responsible to the Guarantor
for (i) any recitals, statements, representations or warranties
contained in any of the aforesaid documents or in any certificate or
other document referred to or provided for therein; (ii) the
genuineness, legality, value, validity, binding effect, enforceability
or sufficiency of the Credit Agreement or any other document or
instrument related to or delivered in connection with the Credit
Agreement; (iii) the fulfillment of any condition or the performance of
any obligation or covenant by the Borrower or any other Person; (iv)
the collectability of any amount due under the Credit Agreement or any
other Loan Document; or (v) the financial or other condition of the
Borrower or any other Person. The Guarantor is able to make and has
made its own independent investigation and determination of the
foregoing matters and the Guarantor accepts its responsibility
therefor. The Agent shall provide the Guarantor with copies of any
notice of default provided to the Agent and the Lenders by the
Borrower; provided, however, that neither the Agent's nor the Lenders'
failure to provide the Guarantor with any such notice shall relieve the
Guarantor of any of its obligations under this Guaranty.
(d) No Lender shall be deemed to be an agent for the Guarantor in
connection with the Participating Interests, any Loans, the Loan
Documents or any documents related thereto. No Lender shall, in the
absence of bad faith, gross negligence or willful misconduct, be liable
to the Guarantor with respect to anything such Lender may do or omit to
do with respect to the Credit Agreement, the other Loan Documents and
the transactions contemplated thereby, including any Participating
Interests purchased by the Guarantor. Finally, any Lender may accept
deposits from, make loans or otherwise extend credit to, and generally
engage in any kind of banking business with the Borrower or any other
Person or entity having obligations relating to the Participating
Interests or the Loans, and receive payment on such Loans, and
otherwise act with respect thereto freely and without accountability in
the same manner as if this Guaranty did not exist. Without limiting the
generality of the foregoing, each Lender may without liability rely
upon the advice of legal counsel, accountants and other experts and
upon
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any written communication or any telephone conversation which such
Lender believes to be genuine and correct or to have been signed, sent
or made by the proper entity.
(e) In the handling of the Participating Interests purchased
hereunder, the Lenders shall exercise the same degree of care that the
Lenders exercise in the making and handling of similar interests for
their own account. It is expressly understood that the Lenders may,
without the prior consent of the Guarantor, give or withhold agreement
to any modification of the Credit Agreement or any other Loan Document,
grant any waivers (including, without limitation, a waiver of
conditions precedent or a waiver of any Default or Event of Default) or
consents in respect thereof, and exercise or refrain from exercising
any other rights or remedies which the Lenders may have under the
aforesaid documents.
(f) The Guarantor agrees that on demand it will reimburse and
indemnify each of the Agent and the Lenders (each such Person, an
"INDEMNIFIED PARTY") from and against any and all liabilities,
obligations, losses, damages, penalties, judgments, actions, and suits
(whether or not such Indemnified Party is involved as a party to any
litigation), as well as costs, expenses, fees, or disbursements of any
kind or nature whatsoever, including legal fees and disbursements,
which may be incurred by, asserted against or imposed on such
Indemnified Party by any Person in connection with the Participating
Interests (including, without limitation, purchases and repurchases of
the Participating Interests pursuant to the terms of this Guaranty),
this Guaranty or any other documents related thereto, or which may
arise out of the enforcement of any rights under this Guaranty or any
document related thereto, to the extent not caused by the gross
negligence or willful misconduct of such Indemnified Party. The
liabilities of the Guarantor under this SECTION 2.13(g) shall survive
the termination of the Credit Agreement and this Guaranty.
2.14. PURCHASE OF LOANS BY THE GUARANTOR. Without limiting
its rights under SECTION 2.12, the Guarantor may at any time, by prior
facsimile notice (confirmed in writing) to the Agent, elect to
purchase, without recourse, all of the Commitments and the Loans
ratably from the Lenders pursuant to Section 11.11.3 of the Credit
Agreement at a price equal to 100% of the principal amount thereof plus
accrued and unpaid interest calculated to the date of such purchase
specified in such notice (which purchase date shall be a date not more
than ten (10) days from the date the Purchase Notice is telecopied to
the Agent), together with the provision of cash collateral or the
making of other arrangements satisfactory to the Issuer in its sole
discretion with respect to the maximum aggregate amount that is or at
any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall
have presented, or shall be entitled at such time to present, the
drafts or other documents required to draw under such Letters of
Credit). Upon any such election by the Guarantor, the Lenders shall
sell all of their Loans to the Guarantor. Subject to SECTION 2.05, this
Guaranty shall automatically terminate upon the consummation of any
purchase of all of the Commitments and the Loans and the provision of
cash collateral or the making of other arrangements satisfactory to the
Issuer with respect to outstanding Letters of Credit, in each case
pursuant to this SECTION 2.14.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF GUARANTOR.
As of the date hereof and as of the date of each extension of credit by the
Lenders, the Guarantor represents and warrants to the Agent and the Lenders
that:
3.01. EXISTENCE. The Guarantor is a corporation duly
incorporated, validly existing and in good standing under the laws of
the state of its incorporation, has the power and authority and the
legal right to own and operate its properties, to lease the properties
it operates and to conduct its business, is duly qualified and in good
standing under the laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification, and is in compliance with all laws except to the extent
that noncompliance would not have a material adverse effect on the
condition (financial or otherwise), business, operations assets or
properties of the Guarantor and its Subsidiaries, taken as a whole.
3.02. LITIGATION. No litigation, investigation or
proceeding of or before an arbitrator or Governmental Authority is
pending or, to the knowledge of the Guarantor after due and diligent
investigation, threatened by or against the Guarantor or against its
properties or revenues which, if determined adversely, could have a
material adverse effect on the condition (financial or otherwise),
business, operations assets or properties of the Guarantor and its
Subsidiaries, taken as a whole.
3.03. NO BREACH. None of the execution and delivery of this
Guaranty, the consummation of the transactions contemplated by this
Guaranty or compliance with the terms and provisions of this Guaranty
will conflict with or result in a breach of, or require any consent
under, the corporate charter or by-laws of the Guarantor, or any law,
regulation, decree, ruling, judgment or order that is applicable to the
Guarantor or its properties or other assets, or any agreement or
instrument to which the Guarantor is a party or by which it is bound or
to which it is subject, or constitute a default under, or result in the
acceleration or mandatory prepayment of, any Indebtedness evidenced by,
or termination of, any such agreement or instrument, or result in the
creation or imposition of any Lien upon any property of the Guarantor
pursuant to the terms of any such agreement or instrument.
3.04. NECESSARY ACTION. The Guarantor has the corporate
power and authority and the legal right to make, deliver and perform
this Guaranty and the Guarantor has taken all necessary action to
authorize the execution, delivery and performance of this Guaranty.
This Guaranty has been duly executed and delivered by the Guarantor,
and constitutes a legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except
as enforceability may be limited by (a) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance,
fraudulent transfer or other similar laws relating to or affecting the
rights of creditors generally, (b) general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including, without limitation (i) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy,
and (ii) concepts of materiality, reasonableness, good faith and fair
dealing, and
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(c) rights of indemnification or contribution being limited by Federal
and state securities laws and the public policy underlying such laws.
3.05. APPROVALS. No consent or authorization of, filing
with, or other act by or in respect of any federal or state
Governmental Authority, is required in connection with the execution,
delivery, performance, validity or enforceability of this Guaranty.
3.06. TAXES. The Guarantor has filed all United States
Federal income tax returns and all other material tax returns that are
required to be filed by it and has paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Guarantor and all
other related penalties and charges. The charges, accruals and reserves
on the books of the Guarantor in respect of taxes and other
governmental charges are, in the opinion of the Guarantor, adequate.
The Guarantor has not given or been requested to give a waiver of the
statute of limitations relating to the payment of any Federal or other
taxes.
3.07. CERTAIN REGULATIONS. The Guarantor (i) is not a
"holding company," or a "subsidiary company" of a "holding company," or
an "affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company," within the meaning of the Public Utility Holding
Company Act of 1935, (ii) is not and is not required to be registered
as an "investment company" under the Investment Company Act of 1940 and
(iii) is not subject to any other law, rule or regulation restricting
its ability to incur Indebtedness or to issue guaranties.
SECTION 4. COVENANTS OF GUARANTOR.
So long as this Guaranty is in effect and until the earlier of
(x) the date on which all of the Obligations shall have been paid in full and
the expiration and termination of the Commitments of the Lenders under the
Credit Agreement and (y) the date on which the Guarantor shall have paid the
Guarantied Amount and the other amounts due to the Agent and the Lenders under
SECTION 5.03 hereof, the Guarantor agrees as follows:
4.01. REPORTING REQUIREMENTS. The Guarantor shall deliver
to the Agent for distribution to the Lenders, promptly after the
sending or filing thereof, copies of all regular, periodic and special
reports, and all registration statements, which the Guarantor files
with the Securities and Exchange Commission or any Governmental
Authority which may be substituted therefor or with any national
securities exchange.
4.02. EXISTENCE, ETC. The Guarantor will: preserve and
maintain its legal existence and all of its material rights, privileges
and franchises; comply with the requirements of all applicable laws,
rules and regulations if the failure to comply with such requirements
would have a material adverse effect on the condition (financial or
otherwise), business, operations assets or properties of the Guarantor
and its Subsidiaries, taken as a whole; pay and discharge all taxes,
assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its property prior to the date on which
penalties attach, except for any such tax, assessment,
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charge or levy, the payment of which is being contested in good faith
and by proper proceedings and against which adequate reserves are being
maintained; maintain all of its properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted; permit representatives of (x) the Agent at its own expense
prior to the occurrence of an Event of Default or at the expense of the
Guarantor after the occurrence and during the continuance of an Event
of Default or (y) any Lender at the expense of the Guarantor after the
occurrence and during the continuance of an Event of Default, upon
reasonable advance notice and during normal business hours, to examine,
copy and make extracts from its books and records, to inspect its
properties, and to discuss its business and affairs with its officers,
all to the extent reasonably requested in advance by the Agent or such
Lender (as the case may be) and to the extent relevant to the
Guarantor's creditworthiness or performance of its obligations under
this Guaranty; keep adequate records and books of account, in which
complete entries will be made in accordance with GAAP; and keep insured
by financially sound and reputable insurers all property of a character
usually insured by companies engaged in the same or similar business
similarly situated against loss or damage of the kinds and in the
amounts customarily insured against by such companies and carry such
other insurance as is usually carried by such companies.
SECTION 5. MISCELLANEOUS PROVISIONS.
5.01. WAIVER. No failure or delay by the Agent or any
Lender in exercising any remedy, right, power or privilege under this
Guaranty or any other Loan Document shall operate as a waiver of such
remedy, right, power or privilege, nor shall any single or partial
exercise of such remedy, right, power or privilege preclude any other
or further exercise of such remedy, right, power or privilege or the
exercise of any other remedy, right, power or privilege. The remedies,
rights, powers and privileges provided by this Guaranty are, to the
extent permitted by law, cumulative and not exclusive of any remedies,
rights, powers or privileges provided by the other Loan Documents or by
law.
5.02. NOTICES. All notices and communications to be given
under this Guaranty shall be given or made in writing to the intended
recipient at the address specified below or, as to any party, at such
other address as shall be designated by such party in a notice to each
other party. Except as otherwise provided in this Guaranty, all such
communications shall be deemed to have been duly given at the times set
forth in SECTION 10.02 of the Credit Agreement, in each case given or
addressed as provided in this SECTION 5.02:
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To the Guarantor: NorthWestern Corporation
125 South Dakota Avenue
Sioux Falls, South Dakota 57104
Attention: Kipp Orme
VP Finance
Facsimile: 605-978-2910
To the Agent: Bank of America, N.A.
555 S. Flower Street
11th Floor
Mail Code CA9-706-11-03
Los Angeles, California 90071
Attention: David Price
Vice President
5.03. EXPENSES, ETC. The Guarantor agrees to pay or to
reimburse the Agent and the Lenders for all reasonable costs and
expenses (including reasonable fees and expenses of counsel) that may
be incurred by the Agent or the Lenders in any effort to enforce any of
the obligations of the Guarantor under this Guaranty, whether or not
any lawsuit is filed, including all such costs and expenses (and
reasonable attorneys' fees and expenses) incurred by the Agent and the
Lenders in any bankruptcy, reorganization, workout or similar
proceeding. All amounts required to be paid by the Guarantor under the
first sentence of SECTION 2.09 of this Guaranty not paid when due shall
bear interest until paid at the rate per annum equal to the Default
Rate.
5.04. AMENDMENTS, ETC. Any provision of this Guaranty may
be waived, altered or amended only by an instrument in writing signed
by the Guarantor and the Agent (with the consent of the Lenders as
specified in SECTION 11.1 of the Credit Agreement). Any waiver,
alteration or amendment shall be for such period and subject to such
conditions as shall be specified in the written instrument effecting
the same and shall be binding upon the Agent, each holder of Guarantied
Obligations and the Guarantor, and any such waiver shall be effective
only in the specific instance and for the purpose for which given.
5.05. SUCCESSORS AND ASSIGNS. This Guaranty shall be
binding upon and inure to the benefit of the Guarantor, the Agent and
their respective successors and assigns. The Guarantor may not assign
or transfer its rights or obligations under this Guaranty without the
prior written consent of the Agent (with the further consent of the
Lenders as specified in SECTION 11.1 of the Credit Agreement). Any
attempted assignment or transfer in violation of this SECTION 5.05
shall be null and void.
5.06. SURVIVAL. All representations and warranties made in
this Guaranty or in any certificate or other document delivered
pursuant to or in connection with this Guaranty shall survive the
execution and delivery of this Guaranty or such certificate or
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other document (as the case may be) or any deemed repetition of any
such representation or warranty.
5.07. ENTIRE AGREEMENT. THIS GUARANTY REPRESENTS THE FINAL
AGREEMENT AMONG THE GUARANTOR, THE AGENT AND THE LENDERS AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN OR AMONG THE GUARANTOR, THE AGENT AND THE LENDERS.
5.08. SEVERABILITY. Any provision of this Guaranty that 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 of this
Guaranty, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
5.09. CAPTIONS. The table of contents, captions and section
headings appearing in this Guaranty are included solely for convenience
of reference and are not intended to affect the interpretation of any
provision of this Guaranty.
5.10. COUNTERPARTS. This Guaranty may be executed in any
number of counterparts, all of which taken together shall constitute
one and the same instrument and any of the parties to this Guaranty may
execute this Guaranty by signing any such counterpart. Transmission by
telecopier of an executed counterpart of this Guaranty shall be deemed
to constitute due and sufficient delivery of such counterpart.
5.11. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE GUARANTOR AGREES THAT
EACH OF THE WAIVERS AND AGREEMENTS OF THE GUARANTOR HEREIN WHICH REFER
TO PROVISIONS OF THE CALIFORNIA CIVIL CODE AND THE CALIFORNIA CODE OF
CIVIL PROCEDURE SHALL BE EFFECTIVE AND ENFORCEABLE TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, AND TO THE EXTENT THAT ANY COURT OF
COMPETENT JURISDICTION SHALL APPLY THE LAWS OF THE STATE OF CALIFORNIA
TO DETERMINE THE RELATIVE RIGHTS OR REMEDIES OF THE GUARANTOR AND THE
AGENT HEREUNDER, SUCH WAIVERS AND AGREEMENTS BY THE GUARANTOR SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA.
THE GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF
ANY NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK FOR THE PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS
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CONTEMPLATED BY THIS GUARANTY. THE GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
5.12. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED BY THIS
GUARANTY.
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IN WITNESS WHEREOF, the undersigned has executed this Guaranty
as of the date first above written.
GUARANTOR:
NORTHWESTERN CORPORATION
By: _________________________________
Name: _________________________________
Title: _________________________________
Accepted on behalf of itself and the Lenders
as of June 30, 2000:
BANK OF AMERICA, N.A., as Agent
By: _________________________________
Name: _________________________________
Title: _________________________________
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