Exhibit 4(i)
AMENDMENT TO GUARANTEE AGREEMENT
AMENDMENT TO GUARANTEE AGREEMENT, dated as of August 13, 2002
(this "Amendment"), among NORTHWESTERN ENERGY, L.L.C., a limited liability
company duly organized and existing under the laws of the State of Montana,
formerly known as The Montana Power, L.L.C. and successor by merger to The
Montana Power Company (the "Guarantor"), having its principal office at 40 East
Broadway, Butte, Montana 59701, NORTHWESTERN CORPORATION, a corporation duly
organized and existing under the laws of the State of Delaware, having its
principal office at 125 S. Dakota Avenue, Sioux Falls, South Dakota 57104
("NOR"), and THE BANK OF NEW YORK, a corporation duly organized and existing as
a banking corporation under the laws of the State of New York, having its
principal corporate trust office at 101 Barclay Street, New York, New York
10286, as Trustee (the "Guarantee Trustee"), amending the Guarantee Agreement,
dated as of November 1, 1996, between The Montana Power Company, predecessor to
the Guarantor, and the Guarantee Trustee, as amended by the Side Letter, dated
as of February 13, 2002, from the Guarantor to the Guarantee Trustee (as
amended, the "Guarantee Agreement"), for the benefit of the Holders from time to
time of the Preferred Securities (as hereinafter defined) of Montana Power
Capital I, a Delaware statutory business trust (the "Issuer") issued under the
Amended and Restated Trust Agreement, dated as of November 1, 1996, among The
Montana Power Company, The Bank of New York, as property trustee, The Bank of
New York (Delaware), as Delaware trustee, and Ellen M. Senechal, Jerrold P.
Pederson and Pamela K. Merrell, as administrative trustees (the "Trust
Agreement").
RECITALS
WHEREAS, pursuant to a Unit Purchase Agreement, dated as of
September 29, 2000, by and between NOR, Touch America Holdings, Inc. and The
Montana Power Company, on February 15, 2002, NOR acquired all the outstanding
membership interests in the Guarantor and the Guarantor became a direct
wholly-owned subsidiary of NOR; and
WHEREAS, the Issuer is a direct wholly-owned subsidiary of the
Guarantor;
WHEREAS, as of the date hereof, the Issuer has $65,000,000
aggregate liquidation amount of its 8.45% Cumulative Quarterly Income Preferred
Securities, Series A, outstanding (the "Preferred Securities");
WHEREAS, in order to enhance the value of the Preferred
Securities, the Guarantor irrevocably and unconditionally agreed, to the extent
set forth in the Guarantee Agreement, to pay to the Holders the Guarantee
Payments and to make certain other payments on the terms and conditions set
forth in the Guarantee Agreement;
WHEREAS, NOR now desires to enter into this Amendment to fully
and unconditionally assume on a joint and several basis with the Guarantor,
every covenant, obligation and agreement of the Guarantor under the Guarantee
Agreement, as though each such covenant, obligation and agreement were
applicable directly to NOR (substituting NOR for the Guarantor for purposes of
the Guarantee Agreement), which assumption shall be subject to all of the terms
and conditions contained herein and in the Guarantee Agreement, including,
without
limitation, the subordination of such obligations to all Senior Indebtedness (as
defined in the Indenture) of NOR (substituting NOR for the Guarantor for
purposes of the definition of Senior Indebtedness contained in the Indenture,
dated as of November 1, 1996, between The Montana Power Company, predecessor to
the Guarantor, and The Bank of New York, as Trustee, as amended by the First
Supplemental Indenture, dated as of February 13, 2002, between the Guarantor and
The Bank of New York, as Trustee (as supplemented, the "Indenture")) to the same
extent as the Guarantee Agreement is subordinated to all Senior Indebtedness of
the Guarantor and to the same extent as the Debentures, and which assumption
shall remain in effect only for so long as any of the Preferred Securities,
which are outstanding on the date hereof, shall remain Outstanding; and
WHEREAS, Section 8.02 of the Guarantee Agreement permits the
parties thereto to enter into an amendment to the Guarantee Agreement without
the consent of Holders if such amendment would not adversely affect the rights
of Holders; and
WHEREAS, the guarantee by NOR of the Guarantor's obligations
under the Guarantee Agreement will not adversely affect the rights of Holders;
and
WHEREAS, the Guarantor and NOR have duly authorized the execution
and delivery of this Amendment; and
WHEREAS, the Guarantor and NOR have requested the Guarantee
Trustee to join with them in the execution of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE ONE
Additional Guarantor.
Section 101. As of the date hereof, NOR fully and unconditionally
assumes on a joint and several basis with the Guarantor, every covenant,
obligation and agreement of the Guarantor under the Guarantee Agreement, as
though each such covenant, obligation and agreement were applicable directly to
NOR (substituting NOR for the Company for purposes of the Guarantee Agreement),
which assumption shall be subject to all of the terms and conditions contained
herein and in the Guarantee Agreement, including, without limitation, the
subordination of such obligations to all Senior Indebtedness of NOR
(substituting NOR for the Guarantor for purposes of the definition of Senior
Indebtedness contained in the Indenture) to the same extent as the Guarantee
Agreement is subordinated to all Senior Indebtedness of the Guarantor. The
assumption contained in this Amendment shall remain in effect only for so long
as any of the Preferred Securities, which are outstanding on the date hereof,
shall remain Outstanding. Notwithstanding the assumption contained in this
Amendment, the covenants, obligations and agreements to be performed and
observed on the part of the Guarantor under the Guarantee Agreement shall remain
in full force and effect, without diminution or derogation in any respect
whatsoever.
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ARTICLE TWO
Rights of Parties Not Prejudiced.
Section 201. Notwithstanding the foregoing, the assumption
contained in this Amendment shall be without prejudice to any rights of the
Guarantor and NOR under the Guarantee Agreement and this Amendment, including,
without limitation, the right of the Guarantor and NOR to assign their
obligations under the Guarantee Agreement and hereunder in connection with a
consolidation, merger or sale involving the Guarantor or NOR that is permitted
under Article Eleven of the Subordinated Indenture, as the same may be amended.
For the avoidance of doubt, such right to assign shall apply to any assignment
of the Guarantor's obligations under the Guarantee Agreement and hereunder in
connection with a consolidation or merger of the Guarantor with or into NOR or
any conveyance or transfer of the Guarantor's properties and assets
substantially as an entirety to NOR in compliance with Article Eleven of the
Subordinated Indenture notwithstanding the fact that NOR has assumed the
Guarantor's obligations under the Guarantee Agreement pursuant to this Amendment
and such assumption hereunder is expressly subject to such right.
ARTICLE THREE
Miscellaneous Provisions.
Section 301. The terms defined in the Guarantee Agreement shall,
for all purposes of this Amendment, have the meaning specified in the Guarantee
Agreement.
Section 302. The Guarantee Trustee hereby accepts the trusts
herein declared, provided, created or supplemented and agrees to perform the
same upon the terms and conditions herein and in the Guarantee Agreement set
forth; provided, however, that the Guarantee Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of this
Amendment or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guarantor and NOR.
Section 303. Each and every term and condition contained in this
Amendment shall apply to and form part of the Guarantee Agreement with the same
force and effect as if the same were set forth in full with such omissions,
variations and insertions, if any, as may be appropriate to make the same
conform to the provisions of this Amendment.
Section 304. Whenever in this Amendment any of the parties hereto
is named or referred to, this shall, subject to the provisions of the Guarantee
Agreement, be deemed to include the successors and assigns of such respective
parties, and all the covenants and agreements in this Amendment contained by or
on behalf of the Guarantor, NOR or the Guarantee Trustee shall, subject as
aforesaid, bind and inure to the respective benefits of the respective
successors and assigns of such parties, whether so expressed or not.
Section 305. Nothing in this Amendment, expressed or implied, is
intended, or shall be construed, to confer upon, or to give to, any person, firm
or corporation, other than the parties hereto and the Holders of the outstanding
Preferred Securities, any right, remedy or claim under or by reason of this
Amendment or any covenant, condition, stipulation, promise or
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agreement hereof, and all the covenants, conditions, stipulations, promises and
agreements in this Amendment contained by or on behalf of respective parties
shall be for the sole and exclusive benefit of the parties hereto, and of the
Holders of the outstanding Preferred Securities.
Section 306. This Amendment may be executed in several
counterparts, each of which shall be deemed to be an original and all of which
shall constitute but one and the same instrument.
Section 307. Except as set forth in this Amendment, all of the
provisions of the Guarantee Agreement remain in full force and effect,
unamended.
Section 308. THIS AMENDMNET SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 309. In case any one or more of the provisions contained
in this Amendment shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Amendment, but this Amendment
shall be construed as if such invalid or illegal or unenforceable provision had
never been contained herein or therein.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the day and year first above written.
NORTHWESTERN ENERGY, L.L.C.
By: /s/ Michael J. Hanson
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Michael J. Hanson
President and Chief Executive Officer
NORTHWESTERN CORPORATION
By: /s/ Kipp D. Orme
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Kipp D. Orme
Vice President and Chief Financial Officer
THE BANK OF NEW YORK, as Guarantee Trustee
By: /s/ MaryBeth A. Lewicki
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MaryBeth A. Lewicki
Vice President