Exhibit 10(f)
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LIMITED GUARANTY
Dated as of March 31, 2000
of
MINNESOTA POWER, INC.
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Lease Financing
for ADESA Corporation
Auto Auction Facilities
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LIMITED GUARANTY
THIS LIMITED GUARANTY, dated as of March 31, 2000 (this "GUARANTY"), is
made by MINNESOTA POWER, INC., a Minnesota corporation (the "GUARANTOR"), to
SUNTRUST BANK, a banking corporation duly organized and validly existing under
the laws of the State of Georgia (the "CREDIT BANK"), and ASSET HOLDINGS III,
L.P., an Ohio limited partnership (the "LESSOR"). Capitalized terms used herein
and not defined herein shall have the meanings ascribed to them in the
Participation Agreement dated as of the date hereof among the Lessor, ADESA
Corporation, an Indiana corporation (the "LESSEE"), the Credit Bank and
Cornerstone Funding Corporation I, a Delaware corporation (the "ISSUER"), as the
same may be amended from time to time (the "PARTICIPATION AGREEMENT").
WITNESSETH:
WHEREAS, as contemplated by the Participation Agreement, the Lease, the
Reimbursement Agreement, the Borrower Promissory Note and the other Operative
Documents, at the request of the Lessee, (i) the Lessor has agreed to lease the
Leased Property to the Lessee and the Lessee has agreed to lease the Leased
Property from the Lessor pursuant to the Lease, (ii) the Issuer has agreed to
issue and sell its Floating Rate Notes, Series 2000A, in the aggregate principal
amount of $28,373,000 and lend the proceeds from the sale thereof to the Lessor
to provide refinancing for certain indebtedness incurred by the Lessor in
connection with its acquisition of the Leased Property, (iv) the Lessor has
agreed to invest from its own equity resources an amount equal to the
Contribution in the principal amount of $877,515.46, to pay certain costs
related to the transactions contemplated by the Operative Documents, (v) the
Credit Bank has agreed to issue the Letter of Credit to secure repayment of the
Notes upon compliance with the other terms and conditions of the Operative
Documents, and (vi) the Lessor has in the Reimbursement Agreement agreed to
reimburse the Credit Bank for Drawings under the Letter of Credit and to pay all
Letter of Credit Liabilities.
WHEREAS, as security for its obligations under the Reimbursement
Agreement, the Lessor has, INTER ALIA, assigned all of its right, title and
interest in the Lease to Credit Bank pursuant to the Assignment of Lease and
Rents dated of even date herewith; and
WHEREAS, for the purposes of this Guaranty, the term "GUARANTEED
OBLIGATIONS" means at any time, subject to the limitations set forth in Section
1 below, any or all of the following, without duplication: (i) payment to the
Lessor and the Credit Bank of, and performance of, all of the obligations of the
Lessee under the Lease, the Assignment of Lease and Rents and the other
Operative Documents, including but not limited to the payment of Rent (the
amount of which includes, without limitation or duplication, the amount of all
Drawings, all Letter of Credit Fees and all Letter of Credit Liabilities), the
payment of the Lease Balance and the payment of the Recourse Deficiency Amount,
at the times and in the circumstances under which the payment of such amounts is
provided for in the Lease and the other Operative Documents, (iii) the payment
and performance of the obligations of the Lessee to pay the applicable purchase
price and purchase the Leased Property pursuant to the provisions of ARTICLES
XI, XIV and XV of the Lease, and (iv) the payment and performance of all
obligations of the Lessee under the Participation Agreement and the
other Operative Documents, all without duplication and in accordance with the
respective terms and provisions of the Lease, the Participation Agreement and
the other Operative Documents; and
WHEREAS, the Guarantor intends this Guaranty to be an inducement (i)
for the Credit Bank to issue the Letter of Credit, which the Credit Bank would
be unwilling to do if the Guarantor did not execute and deliver this Guaranty
and (ii) for the Lessor to invest the Contribution and enter into the Lease,
which the Lessor would be unwilling to do if the Guarantor did not execute and
deliver this Guaranty.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound by this Guaranty, the Guarantor hereby agrees to be bound as
follows:
1. The Guarantor hereby unconditionally guarantees to the Credit Bank
and the Lessor the due and punctual payment and performance of all of the
Guaranteed Obligations, and further unconditionally guarantees and agrees with
the Credit Bank and the Lessor that all sums due or payable by the Lessee in
respect of the Guaranteed Obligations, together with any other sums which may
become due and payable by the Lessee pursuant to any Operative Document with
respect to the Guaranteed Obligations, but only to the extent provided in the
Operative Documents, whether the same shall accrue before or after the filing of
a proceeding under the Bankruptcy Code, shall be promptly paid in full (a) when
due, whether at stated maturity, or on the Lease Termination Date, or by
acceleration or otherwise, in accordance with the provisions of such Guaranteed
Obligations and of the Operative Documents or (b) upon the occurrence of an
Event of Default hereunder.
Notwithstanding anything to the contrary herein contained, it is
expressly understood and agreed that this Guaranty shall not constitute a
guaranty of an amount in excess of the Recourse Deficiency Amount in the event
that the Lessee shall (A) exercise the Remarketing Option in accordance with the
provisions of SECTION 15.6 of the Lease, (B) timely comply with all of the
obligations and satisfy all of the conditions set forth in SECTION 15.6 (i)
through (xiii) of the Lease, including, without limitation, the timely payment
in full of the Recourse Deficiency Amount pursuant to the provisions of SECTION
15.6(x) of the Lease and (C) return and surrender the Leased Property to the
Lessor or, if applicable, the independent purchaser thereof, pursuant to, and in
compliance with, the provisions of SECTION 15.8 of the Lease.
This Guaranty shall be irrevocable, and in all events shall be
continuing, unconditional and absolute, and if for any reason any such sums, or
any part thereof, shall not be paid promptly when due, the Guarantor shall pay
the same to the Credit Bank to and in accordance with the provisions of the
Guaranteed Obligations and the Operative Documents, regardless of any defenses
or rights of set-off or counterclaim, regardless of whether the Credit Bank, the
Lessor or any successor in interest of either of them, shall have taken any
steps to enforce its or their rights against the Lessee, the Lessor or any other
Person, to collect such sums, or any part thereof, and regardless of any other
condition or contingency. The Guarantor also agrees to pay to the Credit Bank,
the Lessor and such successors in interest such further amounts as shall be
sufficient to cover the costs and expense of collecting such sums, or part
thereof, or of otherwise enforcing this Guaranty, including, in any case,
reasonable fees of their respective attorneys for all services rendered in that
connection.
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If the Guarantor shall be required by Applicable Law to deduct any
charges from or in respect of any sum payable hereunder to the Credit Bank, (i)
the sum payable by the Guarantor shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this paragraph) the Credit Bank receives an amount
equal to the sum it would have been entitled to receive from the Lessee and the
Lessor, as the case may be, under the Operative Documents had no such deductions
been made, (ii) the Guarantor shall make such deductions, and (iii) the
Guarantor shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with Applicable Law.
The obligations of the Guarantor hereunder shall be unaffected by, and
shall remain in full force and effect in the event that, a bankruptcy court or
other court of competent jurisdiction shall at any time determine that the
transactions represented by the Lease and the other Operative Documents (i) do
not constitute true leasing transactions, (ii) shall be treated as a financing
or loan transaction or shall otherwise be recharacterized, or (iii) shall in any
respect be held to be unenforceable in accordance with their respective terms.
2. The Guarantor hereby unconditionally (a) waives any requirement
that the Credit Bank first make demand upon, or seek to enforce remedies
against, any other Person or any of the collateral or property of such other
Person before demanding payment from, or seeking to enforce this Guaranty
against, the Guarantor; (b) covenants that this Guaranty will not be discharged
except by complete satisfaction by indefeasible payment in cash in full of all
payment obligations of Guarantor contained in the Guaranteed Obligations and in
the Operative Documents with respect to the Guaranteed Obligations; (c) agrees
that, to the extent permitted by law, this Guaranty shall remain in full effect
without regard to, and shall not be affected or impaired by, any invalidity,
illegality, irregularity or unenforceability in whole or in part of the
Guaranteed Obligations, any other Operative Document (and the Guarantor hereby
waives any defense relating to the enforceability of the Operative Documents or
any provision contained therein), or any limitation of the liability of the
Guarantor thereunder, or any limitation on the method or terms of payment
thereunder which may now or hereafter be caused or imposed in any manner
whatsoever; (d) waives diligence, presentment and protest with respect to, and
any notice of default in, the payment of any amount at any time payable under or
in connection with the Guaranteed Obligations or any of the Operative Documents;
and (e) agrees that each and every right, power and remedy given under this
Guaranty or any other Operative Document shall be cumulative and not exclusive,
and be in addition to all other rights, powers and remedies now or hereafter
granted or otherwise existing.
3. Notwithstanding any payment or payments made by the Guarantor
hereunder or any set-off or application of funds of the Guarantor by the Credit
Bank, until all of the Guaranteed Obligations have been indefeasibly paid and
performed in full, the Guarantor shall not (a) be entitled to be subrogated to
any of the rights of the Credit Bank against the Lessee, the Lessor or any other
guarantor or in any collateral security or guaranty or right of offset held by
the Credit Bank for the payment of any sums due in respect of the Guaranteed
Obligations, or (b) seek any reimbursement or contribution from the Lessee, the
Lessor or any other guarantor in respect of any payment, set-off or application
of funds made by the Guarantor hereunder.
4. The obligations, undertakings and conditions to be performed or
observed by the Guarantor under this Guaranty shall not be affected or impaired
by reason of the happening from
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time to time of any of the following with respect to the Guaranteed Obligations
and the other Operative Documents, all without notice to, or the further consent
of, the Guarantor:
(a) the waiver by the Lessor, the Credit Bank or any other Person
of the observance or performance by the Guarantor of any of the
obligations, undertakings or conditions contained in any of such
Guaranteed Obligations or any of the Operative Documents, except to the
extent of such waiver;
(b) the waiver by the Lessor, the Credit Bank or any other Person,
of the observance or performance by the Lessor or the Lessee of any of
the obligations, undertakings or conditions contained in any such
Guaranteed Obligations or any of the Operative Documents;
(c) the extension, in whole or in part, of the time for payment of
any amount owing or payable under any of the Guaranteed Obligations or
any Operative Document or of any other sums or obligations under or
arising out of or on account of the Guaranteed Obligations or any
Operative Document except to the extent of such extension;
(d) the modification or amendment (whether material or
otherwise) of any of the obligations of the Lessor or the Lessee under
or with respect to any of the Guaranteed Obligations or any of the
Operative Documents, or the modification or amendment (whether material
or otherwise) of any of the obligations of the Guarantor under any
other Operative Document, except to the extent of such modification or
amendment;
(e) the taking or the omission of any of the actions referred to
in any Guaranteed Obligation or any other Operative Document
(including, without limitation, the giving of any consent referred to
therein);
(f) any failure, omission, delay or lack on the part of the Lessor,
the Credit Bank, or any other Person to enforce, assert or exercise any
right, power or remedy conferred on the Lessor, the Credit Bank or any
other Person in any of Operative Documents or with respect to the
Guaranteed Obligations or any action on the part of the Lessor, the
Credit Bank, or any other Person granting indulgence or extension in
any form;
(g) the release or discharge of the Lessor, the Lessee, or any
other Person from the performance or observance of any obligation,
undertaking or condition to be performed by the Lessor, the Lessee or
any such Person under any Guaranteed Obligation or any other Operative
Document by operation of law;
(h) the receipt and acceptance by the Lessor, the Credit Bank, or
any other Person of notes, checks or other instruments for the payment
of money and extensions and renewals thereof;
(i) any payment by the Lessee to the Credit Bank or the Lessor
if such payment is held to constitute a preference under the bankruptcy
laws, or if for any other reason Credit
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Bank or Lessor is required by a court of competent jurisdiction to
refund such payment to the Lessor, the Lessee or pay the amount thereof
to any other party ;
(j) any action, inaction or election of remedies by the
Lessor, the Credit Bank or any other Person which results in any
impairment or destruction of any subrogation rights of the Guarantor,
or any rights of the Guarantor to proceed against any other Person for
reimbursement;
(k) the surrender by the Lessor, the Credit Bank or any other
Person of any security at any time held for the performance or
observance of any of the agreements, covenants, terms or conditions
contained in the Operative Documents or affecting in any respect the
Guaranteed Obligations;
(l) any event or circumstance (other than payment) which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor, indemnitor or surety under the laws of the State of Ohio or
any other jurisdiction;
(m) any other circumstances whatsoever (with or without notice to
or knowledge of the Guarantor) which constitute, or might be construed
to constitute, an equitable or legal discharge of the Guarantor with
respect to its obligations hereunder or under the other Operative
Documents, in bankruptcy or in any other instance, except based on
payment or performance;
(n) any change in circumstances, whether or not foreseen or
foreseeable, whether or not imputable to the Guarantor or the Lessor
and whether or not such change in circumstances shall or might in any
manner and to any extent vary the risk of the Guarantor hereunder; or
(o) any other cause, whether similar or dissimilar to the
foregoing;
5. It being the intention of the Guarantor that this Guaranty be
absolute and unconditional in any and all circumstances and that this Guaranty
shall be discharged only by the indefeasible payment in full of all sums with
respect to which this Guaranty relates.
6. Each of the following shall constitute an event of default ("EVENT
OF DEFAULT"), whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) An Event of Default as defined in ARTICLE XIII of the Lease.
(b) Any default by the Guarantor in the payment of any amount due
hereunder which shall remain unremedied for five days after
written notice to the Guarantor.
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(c) Any representation or warranty made by the Guarantor under
this Guaranty or any other agreement, report, certificate, financial
statement or other instrument referred to herein and furnished to the
Credit Bank in connection herewith shall prove incorrect or misleading
in any material respect when made and shall remain unremedied for five
days after written notice to the Guarantor.
(d) The Guarantor shall default in the performance or
observance of any agreement or covenant contained in this Guaranty
(other than a covenant or agreement or default in the performance or
observance of which is elsewhere in this Section 6 specifically
addressed) and such default shall continue for a period of 10 days
after written notice to the Guarantor.
(e) The filing by the Guarantor of a petition for the appointment
of a trustee with respect to itself or any of its property.
(f) The making by the Guarantor of an assignment for the benefit of
creditors.
(g) The commencement by the Guarantor of a case in bankruptcy or
insolvency or for compromise, adjustment or other relief under the laws
of the United States or of any state relating to the relief of debtors.
(h) The failure of the Guarantor to obtain the dismissal,
within 60 days after service upon the Guarantor of any case commenced
against the Guarantor (i) for the appointment of a trustee for the
Guarantor, of any of its property or (ii) in bankruptcy or insolvency
or for compromise, adjustment or other relief under the laws of the
United States or of any state relating to the relief of debtors.
(i) The failure of the Guarantor to generally pay its debts as such
debts become due.
(j) The making, or the attempted making, by the Guarantor of a
fraudulent conveyance within the meaning of the Uniform Fraudulent
Conveyances Act.
(k) Any "Event of Default" (as defined in any such other
Operative Document) under any of the Lease or any other Operative
Document (after the expiration of all applicable cure and notice
periods) and such "Event of Default" shall continue for a period of ten
(10) days after the Guarantor's receipt of written notice thereof from
the Credit Bank or the Lessor.
7. Notice of acceptance of this Guaranty and notice of the execution
and delivery of any other instrument referred to in this Guaranty,
are hereby waived by the Guarantor.
8. (a) If any Event of Default (other than an Event of Default
specified above in Section 6(e) through (h) hereof inclusive) shall
have occurred and be continuing, the Credit Bank may, in its sole
discretion (i) require the Trustee to draw upon the full amount of the
Letter of Credit then available to be drawn as provided in the Letter
of
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Credit and the Indenture, (ii) declare all obligations of the
Guarantor under this Guaranty to be immediately due and payable,
whereupon all such obligations shall become immediately due and
payable, and (iii) proceed first and directly against the Guarantor
under this Guaranty without proceeding first or concurrently against
the Lessee, the Lessor or any other guarantor, without exhausting any
other remedies it may have (including, without limitation, any remedies
under the Reimbursement Agreement or the other Operative Documents) or
without resorting to any other security held by the Credit Bank.
(b) If any Event of Default specified above in Section 6(e)
through (h) hereof inclusive shall occur (i) all obligations of the
Guarantor under this Guaranty shall immediately and automatically
become due and payable, without notice of any kind, all of which are
hereby expressly waived, and (ii) the Credit Bank may, in its sole
discretion, (A) require the Trustee to draw upon the full amount of the
Letter of Credit then available to be drawn as provided in the Letter
of Credit and the Indenture, and (B) proceed first and directly against
the Guarantor under this Guaranty without proceeding first or
concurrently against the Lessee, the Lessor or any other guarantor,
without exhausting any other remedies it may have (including, without
limitation, any remedies under the Reimbursement Agreement or other
Operative Documents) or without resorting to any other security held by
the Credit Bank.
9. In the event any payment by the Lessee, the Lessor or the Guarantor
to the Credit Bank or the Lessor, as the case may be, is held to constitute a
preference under the bankruptcy laws, or if for any other reason the Credit Bank
or the Lessor, as the case may be, is required to refund by a court of competent
jurisdiction any such payment or pay the amount thereof to any other Person,
such payment to the Credit Bank or the Lessor, as the case may be, shall not
constitute or effect a release of Guarantor from any liability hereunder, but
this Guaranty shall continue to be effective or shall be reinstated, as the case
may be, to the extent of any such payment, as though such payment had not been
made in the first instance, and Guarantor agrees to pay an amount equal to such
payment to the Credit Bank or the Lessor, as the case may be. The provisions of
this paragraph shall survive the termination of this Guaranty.
10. The Guarantor does hereby represent and warrant that:
(a) It is a corporation duly organized, existing and in good
standing under the laws of the jurisdiction of its organization; it has
corporate power to enter into and perform all agreements on its part
herein contained; the execution, delivery and performance by Guarantor
of this Guaranty has been authorized by all necessary and proper
corporate action; the execution and delivery by Guarantor of this
Guaranty does not, and its performance of the agreements herein
contained will not, contravene or constitute a default under any
agreement, indenture, commitment, provision of its organizational
documents, or Requirements of Law to which it is a party or by which it
is or may be bound, the failure of which could reasonably be expected
to have a material adverse effect on the performance of its obligations
hereunder.
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(b) This Guaranty is a valid, legal and binding obligation of the
Guarantor, subject only to certain exceptions in the event of
bankruptcy and the application of general principles of equity.
(c) The waivers, representations, warranties, covenants, and
agreements contained in this paragraph and this Guaranty are for the
benefit of and may be enforced by the Credit Bank and the Lessor and
their respective successors and assigns.
(d) The Guarantor has such knowledge of the business and financial
affairs of the Lessee as the Guarantor deems necessary to evaluate the
risks of executing and delivering this Guaranty to the Credit Bank and
the Lessor, and is capable of evaluating such risks by reason of the
Guarantor's knowledge and experience. All information has been made
available to the Guarantor by the Lessee which is necessary for the
evaluation of such risks. The Guarantor has consulted with and received
advice from legal counsel and financial advisers with respect to such
risks and the Guarantor has not relied, and shall not rely in the
future, upon the Lessor or the Credit Bank to conduct any investigation
of the Lessee's financial condition or business prospects or to notify
the Guarantor now or in the future of any adverse information with
respect thereto which could increase the Guarantor's risk under this
Guaranty.
11. The Guarantor agrees to repay, to the extent included within the
Guaranteed Obligations, all monies, including but not limited to reasonable
attorneys' fees, paid by the Lessor in defense of any action asserted against
the Lessor by the Lessee, as a debtor-in-possession, or by a trustee in
bankruptcy in a proceeding brought under 11 U.S.C. Section 547 of the Bankruptcy
Code for the recovery of monies received by the Lessor from the Lessee as a
result of the Guarantor's obligations hereunder. The Guarantor further agrees to
repay any monies paid by the Lessor in settlement of any such action or in
satisfaction of any judgment rendered against the Lessor in such an action.
12. The Guarantor hereby subordinates any and all claims which it now
has, or in the future may acquire, as a creditor of any of the Lessee or Lessor,
to the prior payment and satisfaction in full of this Guaranty. If, prior to the
payment and satisfaction of this Guaranty, the Guarantor would, without
reference to the provisions of this Section 12, be entitled to receive any
payment on account of any claim of the Guarantor against the Lessee or any of
its Subsidiaries, or the Lessor, all such payments shall be made instead to the
Credit Bank until the Guaranteed Obligations have been paid and satisfied in
full, and the Guarantor hereby so directs. If the Guarantor receives any payment
on account of any claim of the Guarantor against the Lessee or any of its
Subsidiaries, or the Lessor, the Guarantor shall immediately pay the same over
to the Credit Bank to be applied to the payment or satisfaction of the
Guaranteed Obligations, if any. Notwithstanding the foregoing, unless an "Event
of Default" (as defined in the Participation Agreement) has occurred, and has
not been either waived or acknowledged to have been cured in writing by the
Credit Bank, the Guarantor may receive and retain payments from the Lessee or
any of its Subsidiaries on account of any claim of the Guarantor against the
Lessee or any such Subsidiary.
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13. This Guaranty shall remain in full force and effect until payment
in full of all sums payable under and in respect of the Guaranteed Obligations,
and all Operative Documents with respect to the Guaranteed Obligations by the
Guarantor hereunder and the performance in full of all obligations of the
Guarantor in accordance with the provisions of this Guaranty. This Guaranty is a
guaranty of payment and not of collection merely.
14. In case any provision of this Guaranty or any application thereof
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions and any other application thereof
shall not in any way be affected or impaired thereby.
15. TIME IS OF THE ESSENCE IN THIS GUARANTY AND THE TERMS HEREIN SHALL
BE SO CONSTRUED. This Guaranty shall be binding upon the Guarantor and its
successors and shall inure to the benefit of, and be enforceable by, the Credit
Bank and its successors and assigns as to the obligations respectively owed and
guaranteed hereunder. This Guaranty may not be changed, waived, discharged or
terminated orally, but only by a statement in writing signed by the Guarantor
and the Credit Bank, in compliance with the requirements set forth in the
Participation Agreement. This Guaranty may be enforced as to any one or more
defaults either separately or cumulatively. THIS GUARANTY SHALL IN ALL RESPECTS
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF GEORGIA.
16. All notices, demands, requests, consents approvals and other
instruments hereunder shall be given in the manner and at the appropriate
address set forth in the Participation Agreement or at such other address as
such party shall designate by notice to each of the other parties hereto.
17. This Guaranty is made by the Guarantor solely to the Credit Bank
and the Lessor and their respective successors and assigns, and may not be
relied upon by any other person, firm, corporation or entity.
18. The Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the amounts which the Guarantor is obligated to
pay hereunder and notice of or proof of reliance by the Credit Bank upon this
Guaranty or acceptance of this Guaranty. The indebtedness evidenced by the
Guaranteed Obligations shall conclusively be deemed to have been created,
contracted, incurred, renewed, extended, amended or waived in reliance upon this
Guaranty, and all dealings between the Guarantor and the Credit Bank shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this Guaranty.
19. Notwithstanding anything to the contrary herein or in any other
Operative Document, any payment by the Guarantor to the Lessor or the Credit
Bank pursuant to any other Operative Document shall discharge dollar-for-dollar
the related obligations of the Guarantor to the Credit Bank hereunder, and any
payment by the Guarantor to the Credit Bank shall discharge dollar-for-dollar
the related obligations of the Guarantor to the Lessor or the Credit Bank under
any other Operative Document.
20. The Guarantor hereby irrevocably and unconditionally (i) submits
for itself and its property in any legal action or proceeding relating to this
Guaranty or any other Operative
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Document, or for recognition and enforcement of any judgment in respect thereof,
to the non-exclusive general jurisdiction of the courts of the State of Georgia,
the courts of the United States of America for the Northern District of Georgia
and appellate courts from any thereof, (ii) consents that any such action or
proceedings may be brought to such courts, and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any court
or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same, (iii) agrees that service of process in
any such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to such party at its address set forth in SECTION 8.2 of the
Participation Agreement or at such other address of which the other parties
hereto shall have been notified pursuant to SECTION 8.2 of the Participation
Agreement and (iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law. The Guarantor, to the
extent permitted by law, hereby irrevocably and unconditionally waives any right
to have a jury participate in resolving any dispute, whether sounding in
contract, tort, or otherwise, among or between the parties hereto arising out
of, in connection with, related to, or incidental to the relationship
established among the parties in connection with this Guaranty, any other
Operative Document or any other document executed or delivered in connection
herewith or the transactions related hereto. This waiver shall not in any way
affect, waive, limit, amend or modify the Guarantor's ability to pursue any
remedies contained in this Guaranty, the other Operative Documents or any other
agreement or document related hereto.
21. The Guarantor acknowledges that (i) Lessor has assigned its rights
under this Guaranty to the Credit Bank pursuant to the Assignment of Lease and
Rents, and the Lessor and the Credit Bank, by their respective acceptances of
this Guaranty, direct the Guarantor to make payments directly to the Credit Bank
of amounts which at any time may become due to the Lessor hereunder and (ii)
pursuant to the Assignment of Lease and Rents, the power to enforce the Lessor's
rights hereunder has been irrevocably granted to the Credit Bank pursuant to the
power of attorney set forth in SECTION 3 of the Assignment of Lease and Rents.
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IN WITNESS WHEREOF, the Guarantor has caused this Limited Guaranty to
be duly executed as of the day and year first above written.
MINNESOTA POWER, INC.
By: D. G. Gartzke
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Its:
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