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EXHIBIT 1
Execution Copy
Northern Border Partners, L.P.
3,800,000
Common Units(1)
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
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1 Plus an option to purchase from certain Selling Unitholders up to 570,000
additional Common Units to cover over-allotments.
0
XXXXXXXXXXXX XXXXXXXXX
Xxx Xxxx, Xxx Xxxx
August 1, 2001
UBS Warburg LLC
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Brothers Inc.
Xxxx Xxxxxxxx Incorporated
First Union Securities, Inc.
X.X. Xxxxxx Securities Inc.
as Managing Underwriters
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The unitholders of Northern Border Partners, L.P., a limited partnership
organized under the laws of Delaware (the "Partnership"), named in Schedule B
annexed hereto (the "Selling Unitholders") propose to sell, severally and not
jointly, to the underwriters named in Schedule A annexed hereto (the
"Underwriters"), an aggregate of 3,800,000 Common Units ("Common Units")
representing limited partner interests in the Partnership (the "Firm Units"). In
addition, solely for the purpose of covering over-allotments, the Selling
Unitholders propose to grant, severally and not jointly, to the Underwriters the
Option (the "Option") to purchase from the Selling Unitholders up to an
additional 570,000 Common Units (the "Additional Units"). The Firm Units and the
Additional Units are hereinafter collectively sometimes referred to as the
"Units." The Units are described in the Final Prospectus which is referred to
below.
The term "Registration Statement" as used in this Agreement shall mean
such registration statement filed on Form S-3 (File No. 333-63566) (including
all financial schedules and exhibits), as amended when it became effective, or,
if such registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to such registration statement will be filed and must
be declared effective before the offering of the Units may commence, the term
"Registration Statement" as used in this Agreement means such registration
statement as amended by said post-effective amendment. If it is contemplated, at
the time the Agreement is executed, that a registration statement will be filed
pursuant to Rule 462(b) under the Act (as defined below) before the offering of
the Units may commence, the term "Registration Statement" as used in this
Agreement includes such registration statement. The term "Basic Prospectus" as
used in this Agreement shall mean the prospectus contained in the Registration
Statement at the time that the Registration Statement was declared effective or
in the form in which it has been most recently filed with the Commission (as
defined below) on or prior to the date of this Agreement. "Final Prospectus"
shall mean the prospectus supplement relating to the Units and the offering
thereof that is first filed pursuant to Rule 424(b) after the date and time this
Agreement is executed and delivered by the parties hereto, together with the
Basic Prospectus.
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All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, the Basic Prospectus or the Final Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, the Basic Prospectus or the Final
Prospectus, as the case may be; any reference in this Agreement to the
Registration Statement, the Basic Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the dates of the
Registration Statement, the Basic Prospectus or the Final Prospectus, as the
case may be; and any reference to any amendment or supplement to the
Registration Statement, the Basic Prospectus or the Final Prospectus shall be
deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") which, upon filing,
are incorporated by reference therein, as required by paragraph (b) of Item 12
of Form S-3. As used herein, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the Registration
Statement, the Basic Prospectus or the Final Prospectus or any amendment or
supplement thereto.
The Partnership, Northern Border Intermediate Limited Partnership, a
Delaware limited partnership (the "Intermediate Partnership"), and the Selling
Unitholders, acting severally and not jointly, confirm as follows their
agreements with the Underwriters:
1. Sale and Purchase. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Selling Unitholders agree, severally and not jointly, to sell to the respective
Underwriters the number of Units set forth opposite such Selling Unitholder's
name in Schedule B attached hereto and each of the Underwriters agree, severally
and not jointly, to purchase from the Selling Unitholders, at a purchase price
of $36.10 per Common Unit, the number of Firm Units set forth opposite such
Underwriter's name in Schedule A annexed hereto, plus such additional number of
Units which such Underwriter may become obligated to purchase pursuant to
Section 8 hereof. It is understood that the several Underwriters propose to
offer the Units for sale to the public as set forth in the Final Prospectus.
In addition, the Selling Unitholders, acting severally and not jointly,
hereby grant to the several Underwriters the option to purchase, and upon the
basis of the warranties and representations and subject to the terms and
conditions herein set forth, the Underwriters shall have the right to purchase,
severally and not jointly, from the Selling Unitholders, ratably in accordance
with the number of Firm Units to be purchased by each of them (subject to such
adjustment as you shall determine to avoid fractional units), all or a portion
of the Additional Units as may be necessary to cover over-allotments made in
connection with the offering of the Firm Units, at the same purchase price per
unit to be paid by the Underwriters to the Selling Unitholders for the Firm
Units. This option may be exercised by you on behalf of the several Underwriters
at any time (but not more than once) on or before the thirtieth day following
the date hereof, by written notice to the Selling Unitholders and the
Partnership. Such notice shall set forth the aggregate number of Additional
Units as to which the option is being exercised, and the date and time when the
Additional Units are to be delivered (such date and time being herein referred
to as the additional time of purchase); provided, however, that the additional
time of purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the
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third business day(2) after the date on which the option shall have been
exercised nor later than the tenth business day after the date on which the
option shall have been exercised. The number of Additional Units to be sold to
each Underwriter shall be the number which bears the same proportion to the
aggregate number of Additional Units being purchased as the number of Firm Units
set forth opposite the name of such Underwriter on Schedule A hereto bears to
the total number of Firm Units (subject, in each case, to such adjustment as you
may determine to eliminate fractional units).
2. Payment and Delivery. Payment of the purchase price for the Firm
Units shall be made to the respective accounts of the Selling Unitholders by
Federal Funds wire transfer, against delivery of the Firm Units to you for the
respective accounts of the Underwriters. Each Selling Unitholder shall provide
to the Underwriters individual wire transfer instructions on or before August 5,
2001. Such payment and delivery shall be made at 10:00 A.M., New York City time,
on August 6, 2001 (unless another time shall be agreed to in writing by you, the
Partnership and the Selling Unitholders or unless postponed in accordance with
the provisions of Section 8 hereof). The time at which such payment and delivery
of the Firm Units are actually made is hereinafter sometimes called the time of
purchase.
Payment of the purchase price for the Additional Units shall be made at
the additional time of purchase to the respective accounts of the Selling
Unitholders by Federal Funds wire transfer, against delivery of the Additional
Units to you for the respective accounts of the Underwriters. Each Selling
Unitholder shall provide to the Underwriters individual wire transfer
instructions no later than one business day prior to the additional time of
purchase. Such payment and delivery shall be made at 10:00 A.M., New York City
time, at the additional time of purchase (unless another time shall be agreed to
in writing by you, the Partnership and the Selling Unitholders).
3. Representations and Warranties.
(i) The Partnership and the Intermediate Partnership, jointly
and severally represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 3.
(a) The Partnership has prepared and filed, in accordance
with the provisions of the Securities Act of 1933, as amended, and the
rules and regulations thereunder (collectively, the "Act") with the
Securities and Exchange Commission (the "Commission") the Registration
Statement, including a related Basic Prospectus subject to completion
relating to the Units, such Registration Statement has been declared
effective by the Commission, and no stop order suspending the
effectiveness of the Registration Statement has been issued by the
Commission. At the time of the filing of such Registration Statement, the
Partnership met the requirements for use of Form S-3 under the Act. The
Partnership may have filed one or more amendments or supplements thereto,
including any preliminary prospectus which relates to such Basic
Prospectus and has previously been furnished to you. The Partnership will
next file with the
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2 As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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Commission a Final Prospectus which relates to such Basic Prospectus and
includes the Basic Prospectus, in accordance with Rules 430A and 424(b).
The Partnership has included in such Registration Statement, as amended
and supplemented on the date that it becomes effective or the issue date
of the Final Prospectus, as applicable, all information (other than
information with respect to the Units and the offering thereof permitted
to be omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A ("Rule 430A Information")), required by the Act to
be included in such Registration Statement and the Final Prospectus. As
filed, such Final Prospectus, shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Underwriters shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
time of execution of this Agreement or, to the extent not completed at
the time of execution of this Agreement, shall contain only such specific
additional information and other changes as the Partnership has advised
you, prior to the time of execution of this Agreement, will be included
or made therein.
(b) The Registration Statement, on the date that it became
effective, did, and when the Final Prospectus is first filed in
accordance with Rule 424(b) and at the time of purchase or the additional
time of purchase, as the case may be (a "settlement date"), the Final
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Exchange
Act; the Registration Statement, on the date that it became effective and
as supplemented or amended, at the time this Agreement is executed, did
not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the date of
filing pursuant to Rule 424(b) and on the settlement date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Partnership makes no representations or warranties as
to the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Partnership by or on behalf of any Underwriter through any Underwriter or
by or on behalf of any Selling Unitholder through any Selling Unitholder
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The only significant subsidiaries (as defined in Regulation
S-X under the Act) of the Partnership (the "Subsidiaries") are the
Intermediate Partnership, Northern Border Pipeline Company, a Texas
general partnership ("Northern Border Pipeline"), Crestone Energy
Ventures, L.L.C., a Delaware limited liability company ("Crestone"), Bear
Paw Investments, LLC, a Delaware limited liability company ("Bear Paw
Investments"), Bear Paw Energy, LLC, a Delaware limited liability company
("Bear Paw Energy"), Border Midwestern Company, a Delaware corporation
("Border Midwestern"), and Midwestern Gas Transmission Company, a
Delaware corporation ("Midwestern Gas"). Each Subsidiary was duly formed
and is validly existing and in good standing under the laws of its
jurisdiction of formation. Each
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of the Subsidiaries has, and at the time of purchase or the additional
time of purchase, will have, full power and authority to conduct the
activities conducted by it, to own or lease all the assets owned or
leased by it and to conduct its business as described in the
Registration Statement and the Final Prospectus. Each of the
Subsidiaries is, and at the time of purchase or the additional time of
purchase, will be, duly licensed or qualified to do business and in good
standing as a foreign entity in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets owned or
leased by it makes such licensing or qualification necessary, except for
such jurisdictions in which the failure so to qualify or register would
not have a material adverse effect upon such Subsidiary or subject such
Subsidiary or the Partnership to any material liability or disability.
All of the outstanding interests of Crestone have been duly authorized
and validly issued and are fully paid and non-assessable and are owned
by the Intermediate Partnership free and clear of all liens,
encumbrances and claims whatsoever. Crestone, directly or indirectly,
owns (i) all of the membership interests in Crestone Gathering Services,
L.L.C., Crestone Wind River, L.L.C. and Crestone Powder River, L.L.C.,
(ii) a 49% common membership interest in and preferred shares of Bighorn
Gas Gathering, L.L.C. ("Bighorn"), (iii) a 33.33% membership interest in
Fort Union Gas Gathering, L.L.C., a Delaware limited liability company
("Fort Union"), and (iv) a 35% membership interest in Lost Creek
Gathering, L.L.C., a Delaware limited liability company ("Lost Creek"),
in each case free and clear of any liens, claims or encumbrances (except
that Crestone's member interests in Fort Union and Lost Creek are or
will be pledged to the lenders with respect to those projects and except
for such other liens, encumbrances, security interests, equities,
charges or claims as are not, individually or in the aggregate, material
or except as described in the Final Prospectus). All of the outstanding
shares of capital stock of Border Midstream Services, Ltd., an Alberta
corporation ("Border Midstream"), have been duly authorized and validly
issued and are fully paid and non-assessable and are owned by the
Intermediate Partnership free and clear of any liens, claims or
encumbrances (except for such liens, encumbrances, security interests,
equities, charges or claims as are not, individually or in the
aggregate, material or except as described in the Final Prospectus). All
of the outstanding interests of Bear Paw Investments have been duly
authorized and validly issued and are fully paid and non-assessable and
are owned by the Intermediate Partnership free and clear of any liens,
claims or encumbrances (except for such liens, encumbrances, security
interests, equities, charges or claims as are not, individually or in
the aggregate, material or except as described in the Final Prospectus).
All of the outstanding interests of Bear Paw Energy have been duly
authorized and validly issued and are fully paid and non-assessable and
are owned by Bear Paw Investments free and clear of any liens, claims or
encumbrances (except for such liens, encumbrances, security interests,
equities, charges or claims as are not, individually or in the
aggregate, material or except as described in the Final Prospectus). All
of the outstanding shares of capital stock of Border Midwestern have
been duly authorized and validly issued and are fully paid and
non-assessable and are owned by the Intermediate Partnership free and
clear of any liens, claims or encumbrances (except for such liens,
encumbrances, security interests, equities, charges or claims as are
not, individually or in the aggregate, material or except as described
in the Final Prospectus). All of the outstanding shares of capital stock
of Midwestern Gas have been duly authorized and validly issued and are
fully paid and non-assessable and
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are owned by Border Midwestern free and clear of any liens, claims or
encumbrances (except for such liens, encumbrances, security interests,
equities, charges or claims as are not, individually or in the aggregate,
material or except as described in the Final Prospectus). The
Intermediate Partnership owns a 70% general partner interest in Northern
Border Pipeline free and clear of any liens, claims or encumbrances
(except for such liens, encumbrances, security interests, equities,
charges or claims as are not, individually or in the aggregate, material
or except as described in the Final Prospectus).
(d) The Partnership has been duly formed and is validly
existing as a limited partnership under the Delaware Revised Uniform
Limited Partnership Act (the "Delaware Act"), with all necessary
partnership power and authority to own or lease the properties it owns or
leases and to conduct the business it conducts in each case in all
material respects as described in the Registration Statement and the
Final Prospectus, and is duly qualified or registered as a foreign
limited partnership for the transaction of business under the laws of
each jurisdiction in which the failure so to qualify or register would
have a material adverse effect upon the Partnership or subject the
Partnership or the limited partners of the Partnership to any material
liability or disability.
(e) Northern Plains Natural Gas Company, a Delaware
corporation ("Northern Plains") and wholly owned subsidiary of Enron
Corp., an Oregon corporation ("Enron"), Pan Border Gas Company, a
Delaware corporation ("Pan Border") and wholly owned subsidiary of
Northern Plains, and Northwest Border Pipeline Company, a Delaware
corporation ("Northwest Border") and wholly owned subsidiary of The
Xxxxxxxx Companies, Inc., a Delaware corporation ("Xxxxxxxx")
(collectively, the "General Partners"), are the only general partners of
the Partnership with general partner interests in the Partnership of 1.0%
in the aggregate; such general partner interests are duly authorized by
the Agreement of Limited Partnership of the Partnership (as it may be
amended or restated at the date this Agreement is executed, the
"Partnership Agreement"), and were validly issued to the General Partners
and are fully paid (to the extent required under the Partnership
Agreement).
(f) The General Partners are the sole general partners of
the Intermediate Partnership with general partner interests in the
Intermediate Partnership of 1.0101% in the aggregate subject to the
provisions of the Agreement of Limited Partnership of the Intermediate
Partnership (the "Intermediate Partnership Agreement"); such general
partner interests are duly authorized by the Intermediate Partnership
Agreement and were validly issued to the General Partners and are fully
paid (to the extent required under the Intermediate Partnership
Agreement) (the Intermediate Partnership Agreement and the Partnership
Agreement are herein collectively referred to as the "Partnership
Agreements"). Complete and correct copies of the certificate of limited
partnership for each of the Partnership and the Intermediate Partnership
and of the Partnership Agreements, and all amendments thereto have been
delivered to the Underwriters, and no changes therein will be made
subsequent to the date hereof and prior to the time of purchase or the
additional time of purchase.
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(g) The limited partners of the Partnership hold limited
partner interests in the Partnership aggregating 99.0%, such limited
partner interests being represented by 41,623,014 Common Units; such
limited partner interests are the only limited partner interests of the
Partnership that are issued and outstanding; the limited partner
interests represented thereby are authorized by the Partnership
Agreement, were validly issued and are fully paid (to the extent required
under the Partnership Agreement) and non-assessable (except as described
in the Partnership Agreement and except as set forth in Section 17-607 of
the Delaware Act).
(h) The Partnership is the sole limited partner of the
Intermediate Partnership, with a limited partner interest of 98.9899%
(subject to the provisions of the Intermediate Partnership Agreement);
such limited partner interest is authorized by the Intermediate
Partnership Agreement, was validly issued in accordance with the
Intermediate Partnership Agreement and is fully paid and non-assessable
(except as described in the Intermediate Partnership Agreement and except
as set forth in Section 17-607 of the Delaware Act); the Partnership
owns, directly or indirectly, such limited partner interest in the
Intermediate Partnership free and clear of all liens, encumbrances,
security interests, equities, charges or claims (except for such liens,
encumbrances, security interests, equities, charges or claims as are not,
individually or in the aggregate, material or except as described in the
Registration Statement or Final Prospectus).
(i) Except as described in the Final Prospectus or
contained in the Partnership Agreement and except for (i) rights granted
pursuant to that certain Exchange Agreement dated May 31, 1997 among the
Intermediate Partnership, the Partnership and the stockholders of
Xxxxxxxx Technologies, Inc. and (ii) rights granted pursuant to that
certain Exchange Agreement dated December 29, 1997 between the
Partnership and Central Pacific Resources Partnership, there are no
preemptive rights or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of (except in the case of
restrictions on transfer for securities issued by the Partnership in
reliance on Section 4(2) of the Act), any limited partner interests in
the Partnership or the Intermediate Partnership pursuant to either of the
Partnership Agreements or other governing documents or any agreement or
other instrument to which the Partnership or the Intermediate Partnership
is a party or by which either of them may be bound. The Common Units
conform in all material respects to the description of the Common Units
contained in the Final Prospectus. Except as described above, there are
no outstanding options or warrants to purchase any Common Units.
(j) None of the Partnership or the Subsidiaries has
sustained since the date of the latest audited financial statements
incorporated by reference in each of the Registration Statement and the
Final Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Final
Prospectus; and, since the date as of which information is given in the
Final Prospectus, there has not been any material adverse change in the
capitalization or long-term debt of any of the Subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, or results of
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operations of any of the Subsidiaries, otherwise than as set forth or
contemplated in the Final Prospectus.
(k) The Partnership and the Subsidiaries have good and
indefeasible title to all real and personal property necessary to own and
operate their businesses in all material respects as described in the
Final Prospectus, free and clear of all liens, claims, encumbrances and
defects except (1) as described in the Final Prospectus and (2) such as
do not materially interfere with the ownership, operation or benefits of
ownership of such businesses or materially increase the cost of operation
or ownership of such businesses, provided that, (a) with respect to the
gas transmission and gathering pipelines of Northern Border Pipeline,
Crestone, Bear Paw Energy and Midwestern Gas and right-of-way interests
related thereto (the "Pipeline Properties") the foregoing shall only
constitute a representation that, except as described in the Final
Prospectus, (i) Northern Border Pipeline, Crestone, Bear Paw Energy and
Midwestern Gas have sufficient title to enable them to use such Pipeline
Properties in their businesses as they have been used in the past and as
are proposed to be used in the future as described in the Final
Prospectus and (ii) any lack of title has not had and will not have any
material adverse effect on the ability of Northern Border Pipeline,
Crestone, Bear Paw Energy and Midwestern Gas to use such Pipeline
Properties as they have been used in the past and are proposed to be used
in the future as described in the Final Prospectus and will not
materially increase the cost of such use, and (b) with respect to any
real property, buildings and equipment held under lease by Northern
Border Pipeline, Crestone, Bear Paw Energy or Midwestern Gas, such real
property, buildings and equipment are held by Northern Border Pipeline,
Crestone, Bear Paw Energy or Midwestern Gas under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such real
property, buildings and equipment by such person.
(l) The compliance by the Partnership and the Intermediate
Partnership with all of the provisions of this Agreement and the
consummation of the transactions contemplated herein and in the Final
Prospectus to be consummated at the time of purchase or the additional
time of purchase will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Partnership or any of the
Subsidiaries is a party or by which any of them is bound or to which any
of the property or assets of any of them is subject, nor will such action
result in any violation of the provisions of the agreement of limited
partnership, charter or other governing documents of the Partnership or
any of the Subsidiaries or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over any
of them or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the consummation by
the Partnership of the transactions contemplated herein and in the Final
Prospectus to be consummated at the time of purchase or the additional
time of purchase, except for (i) such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Units by the Underwriters, and (ii) such consents,
approvals, authorizations, orders,
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registrations or qualifications (A) as have been obtained or will be
obtained prior to the time of purchase or the additional time of purchase
or (B) that, if not obtained, would not, individually or in the
aggregate, have a material adverse effect upon the holders of Common
Units or the consolidated financial position or results of operations or
prospects of the Partnership, the Intermediate Partnership or Northern
Border Pipeline. The offering and sale of the Units as contemplated by
this Agreement does not give rise to any rights, other than those which
have been waived or satisfied, for or relating to the registration of any
Common Units or other securities of the Partnership or which would
require the inclusion of any Common Units or other securities of the
Partnership in such offering and sale of the Units pursuant to "tag
along" or other such rights.
(m) Other than as set forth in the Final Prospectus, there
are no legal or governmental proceedings pending to which the Partnership
or any of the Subsidiaries is a party or of which any of their respective
properties is the subject which, if determined adversely to such person,
would individually or in the aggregate have a material adverse effect on
the consolidated financial position or results of operations or prospects
of the Partnership; and, to the best of the Partnership's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(n) Xxxxxx Xxxxxxxx L.L.P., who have certified certain
financial statements of Northern Border Pipeline, are independent public
accountants with respect to Northern Border Pipeline, the Intermediate
Partnership and the Partnership as required by the Act.
(o) (i) This Agreement has been duly authorized, executed
and delivered by each of the Partnership and the Intermediate Partnership
and constitutes the valid and binding agreement of each such person, (ii)
the Partnership Agreement has been duly authorized, executed and
delivered by the General Partners and is a valid and legally binding
agreement of the General Partners, enforceable against the General
Partners in accordance with its terms, and (iii) the Intermediate
Partnership Agreement has been duly authorized, executed and delivered by
the parties thereto and is a valid and legally binding agreement of such
parties, enforceable against the General Partners in accordance with its
terms, except as the enforceability of the Partnership Agreements may be
affected by (A) the matters described in the Final Prospectus and (B)
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and general
equitable principles.
(p) Each of the Partnership and the Subsidiaries carries,
or is covered by, insurance in such amounts and covering such risks as is
customarily obtained by businesses similarly situated, taking into
account self-insurance.
(q) None of the Partnership or the Subsidiaries is in, nor
will consummation of the transactions contemplated herein or in the Final
Prospectus to be consummated at the time of purchase or the additional
time of purchase result in: (i) violation of its charter, bylaws,
agreement of limited or general partnership or other governing document
(except for the failure to mail the reports identified in Section 8.3(b)
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of the Partnership Agreement); or (ii) default (and no event has occurred
which, with notice or lapse of time or both, would constitute such a
default) in the due performance or observance of any term, covenant or
condition contained in any material contract, agreement, indenture or
instrument to which it or its property may be subject, or violation of
any law, ordinance, governmental rule, regulation or court decree to
which it or its property may be subject, which default or violation,
individually or in the aggregate, could have a material adverse effect on
the holders of Common Units or the consolidated financial position or
results of operations or prospects of any of the Partnership, the
Intermediate Partnership or Northern Border Pipeline; and, except as
described in the Final Prospectus, none of the Partnership or the
Subsidiaries has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business.
(r) Neither the Partnership nor the Intermediate
Partnership is, or at the time of purchase or the additional time of
purchase will be, (a) a "holding company" or "affiliate" of a holding
company (other than an exempt holding company) or public utility, as
defined in the Public Utility Holding Company Act of 1935 or (b) an
"investment company" as that term is defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act"), and the rules and
regulations thereunder;
(s) Except as described in the Final Prospectus, the
Partnership and the Subsidiaries possess, and are operating in compliance
in all material respects with, all certificates, authorities or permits
issued by the appropriate local, state, federal or foreign regulatory
agencies or bodies necessary to conduct the business currently (or, as
described or contemplated in the Final Prospectus, to be) operated by
them, except for such certificates, authorizations or permits which, if
not obtained, would not reasonably be expected to have, individually or
in the aggregate, a material adverse effect upon the ability of the
Partnership and the Subsidiaries to conduct their businesses in all
material respects as currently conducted and as contemplated by the Final
Prospectus to be conducted; and, except as described in the Final
Prospectus, none of the Partnership or the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would be expected to have a material adverse effect upon the ability of
the Partnership or the Subsidiaries to conduct their businesses in all
material respects as currently conducted and as contemplated by the Final
Prospectus to be conducted.
(t) Neither the Partnership nor the Intermediate
Partnership has taken, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of
the Common Units to facilitate the sale or resale of the Common Units in
violation of any law, rule or regulation.
(u) The financial statements of the Partnership (including
the related notes and supporting schedules) filed as part of or
incorporated by reference in the Registration Statement or included or
incorporated by reference in the Final Prospectus present fairly in all
material respects the consolidated financial condition, results of
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operations and cash flows of the Partnership and its subsidiaries at the
dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles (except as
otherwise described therein) applied on a consistent basis throughout
the periods involved.
(v) The Partnership maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(w) The Partnership and the Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and
safety, the environment or imposing liability or standards of conduct
concerning any Hazardous Material (as hereinafter defined)
("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with all
terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would
not, individually or in the aggregate, result in a material adverse
effect on the condition (financial or otherwise) or on the earnings,
business, properties, business prospects or operations of the
Partnership and the Subsidiaries, taken as a whole. The term "Hazardous
Material" means (A) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (B) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (C) any petroleum or
petroleum product, (D) any polychlorinated biphenyl and (E) any
pollutant or contaminant or hazardous, dangerous, or toxic chemical,
material, waste or substance regulated under or within the meaning of
any other Environmental Law.
(x) In the ordinary course of their businesses, the
Partnership and the Subsidiaries conduct a periodic review of the effect
of Environmental Laws on the business, operations and properties of the
Partnership and the Subsidiaries, in the course of which they identify
and evaluate associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). Except as
set forth in the Registration Statement and the Final Prospectus there
are no costs and liabilities associated with or arising in connection
with Environmental Laws as currently in effect (including, without
limitation, costs of compliance therewith) which would, singly or in the
aggregate have a material adverse effect on the condition
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(financial or otherwise) or on the earnings, business, properties,
business prospects or operations of the Partnership and the Subsidiaries,
taken as a whole.
(y) The Partnership and the Subsidiaries are in compliance
with all federal, state and local employment and labor laws, including,
but not limited to, laws relating to non-discrimination in hiring,
promotion and pay of employees; no labor dispute exists involving the
employees of Northern Plains or NBP Services Corporation, a Delaware
corporation, or, to the knowledge of the Partnership or the Intermediate
Partnership, is imminent or threatened; and neither the Partnership nor
the Intermediate Partnership is aware of any existing, imminent or
threatened labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could result in a material
adverse effect on the condition (financial or otherwise) or on the
earnings, business, properties, business prospects or operations of the
Partnership and the Subsidiaries, taken as a whole.
(z) The outstanding Common Units are listed for trading on
the New York Stock Exchange, including the Units to be sold by the
Selling Unitholders pursuant to this Agreement.
(ii) Each Selling Unitholder, severally and not jointly,
represents and warrants to each Underwriter that:
(a) Such Selling Unitholder is the record and beneficial
owner of the Units to be sold by it hereunder free and clear of all
liens, encumbrances, equities and claims and has duly endorsed such Units
in blank, and, assuming that (1) the Underwriters purchase such Units
from such Selling Unitholder without notice of any adverse claim (within
the meaning of Section 8-105 of the New York Uniform Commercial Code
("UCC")), (2) the Underwriters make payment therefor as provided herein,
(3) such Units are delivered to you in accordance with the provisions of
the Custody Agreement (as defined below) and (4) the Underwriters obtain
control of the Units (as provided in Section 8-106(b) of the UCC), the
Underwriters will have acquired all of the rights and interest in such
Units, free of any adverse claim (within the meaning of Section 8-105 of
the UCC).
(b) Such Selling Unitholder has not taken, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of
the Partnership to facilitate the sale or resale of the Units.
(c) Such Selling Unitholder has and at the time of
purchase or the additional time of purchase will have, the requisite
legal right and capacity or power and authority, and no consent,
approval, authorization or order of any court or governmental agency or
body is required for the consummation by such Selling Unitholder of the
transactions contemplated herein, except such as may have been obtained
under the Act and such as may be required under the blue sky laws of any
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jurisdiction in connection with the purchase and distribution of the
Units by the Underwriters and such other approvals as have been obtained.
(d) Neither the sale of the Units being sold by such
Selling Unitholder nor the consummation of any other of the transactions
herein contemplated by such Selling Unitholder or the fulfillment of the
terms hereof by such Selling Unitholder will conflict with, result in a
breach or violation of, or constitute a default under (i) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Selling Unitholder (or any affiliate of any Selling
Unitholder) is a party or by which the Selling Unitholder is bound or to
which any of the property or assets of the Selling Unitholder is subject,
(ii) the charter or by-laws or other organizational documents of such
Selling Unitholder, as applicable, or (iii) any law to which such Selling
Unitholder (or any affiliate of any Selling Unitholder) is bound, or any
judgment, order or decree applicable to such Selling Unitholder of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Unitholder, except in
the case of clauses (i) and (iii), as would not have a material adverse
effect on such Selling Unitholder's performance of its obligations
hereunder.
(e) This Agreement and the Custody Agreement dated the
date hereof among Equiserve Trust Company, N.A., as custodian, and such
Selling Unitholders (the "Custody Agreement") have been duly executed and
delivered by such Selling Unitholder and each constitutes a valid and
binding agreement of such Selling Unitholder. The Custody Agreement is
enforceable against such Selling Unitholder in accordance with its terms
except as the enforceability of the Custody Agreement may be affected by
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and general
equitable principles.
(f) The sale of Units by such Selling Unitholder pursuant
hereto is not prompted by any information concerning the Partnership or
any of the Subsidiaries which is not set forth in the Final Prospectus or
any supplement thereto.
(g) The information in the Final Prospectus under the
caption "Principal and Selling Unitholders" which specifically relates to
such Selling Unitholder does not, and will not at the time of purchase or
the additional time of purchase, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading.
Any certificate signed by any officer of any of the Selling
Unitholders or if such Selling Unitholder is an individual, by the Selling
Unitholder, and delivered to the Underwriters or counsel for the Underwriters in
connection with the offering of the Units shall be deemed a representation and
warranty by such Selling Unitholder, severally and not jointly, as to matters
covered thereby, to each Underwriter.
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4. Certain Covenants.
(i) The Partnership and the Intermediate Partnership agree with
the several Underwriters:
(a) to furnish such information as may be required and otherwise
to cooperate in qualifying the Units for offering and sale under the securities
or blue sky laws of such states as you may designate and to maintain such
qualifications in effect so long as required for the distribution of the Units;
provided that the Partnership shall not be required to qualify as a foreign
partnership or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale of the
Units); and to promptly advise you of the receipt by the Partnership of any
notification with respect to the suspension of the qualification of the Units
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(b) during the period of time referred to in the second sentence
in paragraph (e) below, to advise you and counsel for the Underwriters promptly
and, if requested by you, to confirm such advice in writing: (i) of any request
by the Commission for amendment of or a supplement to the Registration
Statement, the Basic Prospectus or the Final Prospectus or for additional
information; (ii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the suspension of
qualification of the Units for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) of any change in the
business, prospects, financial condition or results of operations of the
Partnership or the Intermediate Partnership, or of the happening of any event,
which makes any statement of a material fact made in the Registration Statement
or the Final Prospectus (as then amended or supplemented) untrue or that
requires the making of any additions to or changes in the Registration Statement
or the Final Prospectus (as then amended or supplemented) in order to state a
material fact required by the Act to be stated therein or necessary in order to
make the statements therein not misleading, or of the necessity to amend or
supplement the Final Prospectus (as then amended or supplemented) to comply with
the Act or any other law. If at any time within the period of time referred to
in the second sentence in paragraph (e) below, the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, the
Partnership and the Intermediate Partnership will make every reasonable effort
to obtain the withdrawal of such order at the earliest possible time;
(c) to furnish to you, at your request and without charge, (i)
one signed copy of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the Registration Statement and (ii) such number of conformed copies
of the Registration Statement as originally filed and of each amendment thereto,
but without exhibits, as you may request;
(d) prior to the end of the period of time referred to in the
second sentence in paragraph (e) below, not to file any amendment to the
Registration
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Statement or make any amendment or supplement to the Final Prospectus, or
file any document that, upon filing, becomes an Incorporated Document, of
which you and counsel for the Underwriters shall not previously have been
advised or to which, after you and counsel for the Underwriters shall
have received a copy of the document proposed to be filed, you shall
reasonably object; provided that your consent shall not be unreasonably
withheld or delayed;
(e) to cause the Final Prospectus to be filed pursuant to,
and in compliance with, Rule 424(b). As soon after the execution and
delivery of this Agreement as possible and thereafter from time to time
for such period as a prospectus is required by the Act to be delivered in
connection with sales of the Units by any Underwriter or dealer, the
Partnership and the Intermediate Partnership will expeditiously deliver
to each Underwriter and each dealer, without charge, as many copies of
the Final Prospectus (and of any amendment or supplement thereto) as you
may reasonably request. The Partnership and the Intermediate Partnership
consent to the use of the Final Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Act and with
the securities or Blue Sky laws of the jurisdictions in which the Units
are offered by the several Underwriters and by all dealers to whom Units
may be sold, both in connection with the offering and sale of the Units
and for such period of time thereafter as the Final Prospectus is
required by the Act to be delivered in connection with sales of the Units
by any Underwriter or dealer. If during such period of time any event
shall occur that in the judgment of the Partnership or the Intermediate
Partnership or in the opinion of counsel for the Underwriters is required
to be set forth in the Final Prospectus (as then amended or supplemented)
or should be set forth therein in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the Final
Prospectus (or to file under the Exchange Act any document that, upon
filing, becomes an Incorporated Document) in order to comply with the Act
or any other law, the Partnership and the Intermediate Partnership will
forthwith prepare and, subject to the provisions of paragraph (d) above,
file with the Commission an appropriate supplement or amendment thereto
(or to such document), and will expeditiously furnish to the Underwriters
and dealers a reasonable number of copies thereof. In the event that the
Partnership or the Intermediate Partnership and the several Underwriters
agree that the Final Prospectus should be amended or supplemented, the
Partnership and the Intermediate Partnership, if requested by you, will
promptly issue a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement;
(f) to make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the "effective date of the Registration Statement" (as defined in
Rule 158(c) of the Act), an earnings statement of the Partnership (which
need not be audited) complying with Section 11(a) of the Act;
(g) not to issue, sell, offer or agree to sell, contract
to sell, grant any option to sell or otherwise dispose of, directly or
indirectly, any Common Units or securities convertible into or
exchangeable or exercisable for Common Units or warrants or other rights
to purchase Common Units or any other securities of the Partnership that
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are substantially similar to Common Units or permit the registration
under the Act of any Common Units, except for (i) the registration of the
Units and the sales to the Underwriters pursuant to this Agreement, (ii)
the issuances of Common Units pursuant to any employee unit option plan,
unit ownership plan or a dividend reinvestment plan of the Partnership in
effect on the date of execution of this Agreement and (iii) the issuance
of Common Units issuable upon conversion of securities or the exercise of
warrants outstanding on the date of execution of this agreement, for a
period of sixty (60) days after the date hereof, without the prior
written consent of UBS Warburg LLC;
(h) to pay all expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the Underwriters
except as set forth under Section 5 hereof or (iii) below) in connection
with (i) the preparation and filing of the Registration Statement, the
Final Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters and
to dealers (including costs of mailing and shipment), (ii) the issuance,
sale and delivery of the Units by the Selling Unitholders (other than any
transfer taxes), (iii) the qualification of the Units for offering and
sale under state laws and the determination of their eligibility for
investment under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel to the Underwriters) and
the printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers, (iv) any listing
of the Units on any securities exchange and any registration thereof
under the Exchange Act, (v) the filing for review of the public offering
of the Units by the National Association of Securities Dealers, Inc., and
(vi) the performance of the Partnership's other obligations hereunder.
(ii) Each Selling Unitholder agrees, severally and not jointly,
with the several Underwriters:
(a) except pursuant to this Agreement, such Selling
Unitholder shall not, without the prior written consent of UBS Warburg
LLC, (1) offer, sell, contract to sell, pledge or otherwise dispose of,
(or enter into any transaction which is designed to, or might reasonably
be expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise) by
such Selling Unitholder or any affiliate thereof or any person in privity
with such Selling Unitholder or any affiliate thereof), directly or
indirectly, including the filing (or the participation in the filing) of
a registration statement with the Commission in respect of, (2) establish
or increase a put equivalent position or (3) liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act
with respect to, any Common Units or any securities convertible into, or
exercisable or exchangeable for such Common Units, in each of clauses
(1), (2) and (3), on any securities exchange, or publicly announce an
intention to effect any such transaction, for a period of sixty (60) days
after the date of this Agreement (the "Lock-up Period"); provided,
however, that as a condition to any transaction described in clauses (1),
(2) and (3) by such Selling Unitholder that is not on a securities
exchange prior to the expiration of the Lock-up Period, the transferee in
such transaction shall agree to be bound by the terms of this paragraph
for the remainder of the Lock-up Period, and provided further, that UBS
Warburg shall not grant any release, waiver or termination of the
provisions of this
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paragraph to any Selling Unitholder unless UBS Warburg grants such
release, waiver or termination to all Selling Unitholders and Holders (as
defined herein) pro rata based on the number of Common Units held by such
Selling Unitholders and Holders.
(b) not to take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Partnership to
facilitate the sale or resale of the Units; and
(c) to advise you promptly, and if requested by you, will
confirm such advice in writing, so long as delivery of a prospectus
relating to the Units by an underwriter or dealer may be required under
the Act, of (i) any material change in the Partnership's condition
(financial or otherwise), prospects, earnings, business or properties
which comes to the attention of such Selling Unitholder, (ii) any change
in information in the Registration Statement or the Final Prospectus
relating to such Selling Unitholder or (iii) any new material information
relating to the Partnership or relating to any matter stated in the Final
Prospectus which comes to the attention of such Selling Unitholder.
5. Reimbursement of Underwriters' Expenses. If the Units are not
delivered for any reason other than the termination of this Agreement pursuant
to the first two paragraphs of Section 7 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, the
Partnership shall, in addition to paying the amounts described in Section 4(i)
hereof, reimburse the Underwriters for all of their out-of-pocket expenses,
including the fees and disbursements of their counsel. If the Partnership is
required to make any payments to the Underwriters under this Section 5 as a
result of the inaccuracy of a representation or warranty hereunder of one or
more Selling Unitholders, the failure of one or more Selling Unitholders to
comply with its or their obligations hereunder or the failure to satisfy the
conditions set forth in Section 6(i)(u), 6(iii), 6(xii) (but only insofar as
such provision applies to Selling Unitholders) and 6(xiii), the Selling
Unitholders whose representations or warranties were inaccurate, who failed to
comply with their obligations or who failed to satisfy such conditions shall
reimburse the Partnership on demand for the amounts paid to the Underwriters
under this Section 5 (and if more than one Selling Unitholder shall be required
to so reimburse the Partnership, the reimbursement obligation shall be several
and in proportion to the number of Units listed in Schedule B under the caption
Number of Units to be Sold).
6. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties set forth in this Agreement on the part of the Partnership and
the Selling Unitholders on the date hereof, at the time of purchase and at the
additional time of purchase (unless previously waived), as the case may be, the
performance by the Partnership of its obligations hereunder and to the following
additional conditions precedent:
(i) The Partnership shall have requested and caused Xxxxxx &
Xxxxxx L.L.P., counsel for the Partnership, to have furnished to you their
opinion, dated the time of purchase or the additional time of purchase, as the
case may be, and addressed to the Underwriters, to the effect that:
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(a) Each of the Partnership and the Intermediate
Partnership has been duly formed and is validly existing as a limited
partnership under the Delaware Act, with full partnership power and
authority under the Delaware Act and the Partnership Agreement and the
Intermediate Partnership Agreement, respectively, necessary to own, lease
and operate its properties and conduct its business as described in the
Final Prospectus;
(b) The Partnership has been registered as a foreign
limited partnership for the transaction of business under the laws of the
State of Texas, and to such counsel's knowledge based upon a certificate
(a copy of which has been furnished to you and your counsel) from an
authorized officer of the Partnership as to the states in which the
Partnership owns or leases property or conducts business, the State of
Texas is the only jurisdiction in which the Partnership owns or leases
property or conducts business so as to require qualification or
registration to conduct business as a foreign limited partnership, except
where the failure to so qualify or register would not (i) have a material
adverse effect upon the Partnership, the Intermediate Partnership or the
General Partners or (ii) subject the limited partners of the Partnership
to any material liability or disability;
(c) The Intermediate Partnership has been qualified or
registered as a foreign limited partnership for the transaction of
business under the laws of the States of Illinois, Iowa, Indiana,
Minnesota, Montana, Nebraska, North Dakota, South Dakota and Texas, and
to such counsel's knowledge based upon a certificate (a copy of which has
been furnished to you and your counsel) from an authorized officer of the
Partnership as to the states in which the Partnership owns or leases
property or conducts business, such jurisdictions are the only
jurisdictions in which the Intermediate Partnership owns or leases
property or conducts business so as to require qualification or
registration to conduct business as a foreign limited partnership, except
where the failure to so qualify or register would not (i) have a material
adverse effect upon the Partnership, the Intermediate Partnership or the
General Partners or (ii) subject the limited partners of the Partnership
to any material liability or disability;
(d) The General Partners are the sole general partners of
each of the Partnership and the Intermediate Partnership with a combined
general partner interest in the Partnership of 1.0% and a combined
general partner interest in the Intermediate Partnership of 1.0101%
(subject to the provisions of the Partnership Agreement and the
Intermediate Partnership Agreement, respectively); such general partner
interests are duly authorized by the Partnership Agreement and the
Intermediate Partnership Agreement, respectively, are validly issued and
fully paid (to the extent required by the Partnership Agreement and
Intermediate Partnership Agreement) and are owned of record by the
General Partners free and clear of all liens, encumbrances, security
interests, equities, charges or claims of record (except as provided in
the Partnership Agreement, the Intermediate Partnership Agreement or the
Northern Border Pipeline Partnership Agreement or pursuant to the
Delaware Act, as amended) (A) in respect of which a financing statement
under the Uniform Commercial Code of the State of Delaware naming a
General Partner as debtor is on file in the offices of the Secretary of
State of the State of Delaware or (B) otherwise known to such counsel;
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(e) The Partnership is the sole limited partner of the
Intermediate Partnership, with a limited partner interest in the
Intermediate Partnership of 98.9899% (subject to the provisions of the
Intermediate Partnership Agreement); such limited partner interest is
duly authorized by the Intermediate Partnership Agreement and is validly
issued, fully paid and non-assessable, except as provided in Section
17-607 of the Delaware Act; and the Partnership owns such limited partner
interest in the Intermediate Partnership free and clear of all liens,
encumbrances, security interests, equities, charges or claims of record
(except as provided in the Intermediate Partnership Agreement or pursuant
to the Delaware Revised Uniform Limited Partnership Act, as amended) (A)
in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming the Partnership as debtor is on file
in the offices of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel;
(f) Immediately prior to the closing under this Agreement,
the limited partners of the Partnership held limited partner interests in
the Partnership aggregating 99.0% (subject to the provisions of the
Partnership Agreement); such limited partner interests are represented by
41,623,014 Common Units; such limited partner interests will be the only
limited partner interests of the Partnership that are issued and
outstanding immediately following the closing under this Agreement; the
Units, when issued to the Selling Unitholders, were authorized by the
Partnership Agreement and were validly issued, fully paid and
non-assessable, except as provided in Section 17-607 of the Delaware Act;
(g) Insofar as such descriptions relate to legal matters
or descriptions of provisions of the governing instruments, the Common
Units conform in all material respects to the descriptions thereof
contained in the Final Prospectus;
(h) Except as described in the Final Prospectus and
contained in the Partnership Agreement and except for (i) rights granted
pursuant to that certain Exchange Agreement dated May 31, 1997 among the
Intermediate Partnership, the Partnership and the stockholders of
Xxxxxxxx Technologies, Inc. and (ii) rights granted pursuant to that
certain Exchange Agreement dated December 29, 1997 between the
Partnership and Central Pacific Resources Partnership, there are no
preemptive or other rights to subscribe for or to purchase any limited
partner interests of the Partnership or the Intermediate Partnership
pursuant to the Partnership Agreements or, to such counsel's knowledge,
pursuant to any other agreement or instrument to which the Partnership or
the Intermediate Partnership is a party; and except as described in the
Final Prospectus and except for restrictions on transfer of securities
issued by the Partnership in reliance on Section 4(2) of the Act, there
are no restrictions upon the voting or transfer of any limited partner
interests of the Partnership or the Intermediate Partnership pursuant to
the Partnership Agreements or, to such counsel's knowledge, pursuant to
any other agreement or instrument to which the Partnership or the
Intermediate Partnership is a party.
(i) The Registration Statement was declared effective
under the Act on July 27, 2001; the Final Prospectus was filed with the
Commission pursuant to subparagraph (2) of Rule 424(b) on August 2, 2001;
and no stop order suspending the
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effectiveness of the Registration Statement has been issued and, to such
counsel's knowledge, no proceeding for that purpose is pending or
threatened by the Commission;
(j) The Registration Statement and the Final Prospectus
and any further amendments or supplements thereto made by the Partnership
prior to the time of purchase or the additional time of purchase (other
than the financial statements and related schedules or other financial or
statistical data and the projected data included therein, as to which we
express no opinion) comply as to form in all material respects with the
requirements of the Act;
(k) To such counsel's knowledge, there are no contracts or
other documents that are required to be summarized or described in the
Final Prospectus or filed as exhibits to the Registration Statement by
the Act that have not been summarized, described or incorporated by
reference in the Final Prospectus or filed as exhibits to the
Registration Statement;
(l) The statements contained in the Basic Prospectus under
the caption "Tax Considerations" and in the Final Prospectus under the
caption "Prospectus Supplement Summary - Tax Considerations," insofar as
such statements describe federal statutes, rules and regulations,
constitute a fair summary thereof that is accurate in all material
respects; such counsel's opinion filed as Exhibit 8 to the Registration
Statement and as Exhibit 8 to the Partnership's Form 8-K filed on August
2, 2001, are confirmed, and you may rely upon such opinions as if each of
them were addressed to you;
(m) This Agreement has been duly authorized, executed and
delivered by each of the Partnership and the Intermediate Partnership;
assuming due authorization, execution and delivery by, and the validity,
legally binding effect and enforceability with respect to, the other
parties thereto, the General Partnership Agreement governing Northern
Border Pipeline, as amended and in effect on the date hereof, and each of
the Partnership Agreements constitute valid and legally binding
agreements of each of the Partnership, the Intermediate Partnership and
the General Partners (in each case, to the extent a party thereto) and
are enforceable against each such party in accordance with their
respective terms, subject to the qualifications that (A) the
enforceability of each such agreement may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws of general applicability relating to or affecting the rights
of creditors generally, (B) the enforceability of each such agreement may
be limited by public policy, applicable law relating to fiduciary duties
and the judicial imposition of an implied covenant of good faith and fair
dealing, (C) the enforceability of equitable rights and remedies provided
for in each such agreement is subject to equitable defenses and judicial
discretion, and (D) the enforceability of certain other provisions of
each such agreement may be limited by applicable laws and court
decisions, none of which should materially and adversely interfere with
the practical realization of the material benefits intended to be
provided by such agreements;
(n) The compliance by each of the Partnership and the
Intermediate Partnership with all of the provisions of this Agreement
will not, with the
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passage of time or upon stated contingency or otherwise, (A) conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any of the agreements filed or
incorporated by reference as exhibits to the Partnership's Annual Report
on Form 10-K for the year ended December 31, 2000 (the "2000 10-K") or
any report filed by the Partnership with the Commission subsequent to the
filing of the 2000 10-K, or (B) result in any breach or violation of the
provisions of the certificate of limited partnership of the Partnership
or the Intermediate Partnership or of any statute or any rule or
regulation of any governmental agency or body having jurisdiction over
either of such entities or its properties, excluding in each case any
breaches or violations which, individually or in the aggregate, would not
have a material adverse effect on the limited partners of the Partnership
or the financial condition, results of operation, business or prospects
(as described in the Final Prospectus) of the Partnership and the
Intermediate Partnership considered as a whole;
(o) Except as described in the Final Prospectus, or as
provided in the Partnership Agreement and the Acquisition Agreement,
dated March 14, 2001 (the "Acquisition Agreement"), among the
Partnership, the Intermediate Partnership, Bear Paw Investments, Bear Paw
Energy and the other parties named therein, to such counsel's knowledge
there are no contracts, agreements or understandings between the
Partnership, the Intermediate Partnership or the General Partners and any
person granting such person the right to require the Partnership to file
a registration statement under the Act with respect to any securities of
the Partnership owned or to be owned by such person or to require the
Partnership to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Partnership under the Act; and none of such rights described in this
paragraph would require any such securities to be included in the
offering and sale of the Units;
(p) Neither the Partnership nor the Intermediate
Partnership is an "investment company" as that term is defined in the
Investment Company Act and the rules and regulations thereunder and each
General Partner is either (A) not an "investment company" as that term is
defined in the Investment Company Act and the rules and regulations
thereunder or (B) exempt from the Investment Company Act;
(q) None of the Partnership, the Intermediate Partnership
or any General Partner is a "public utility company," a "holding company"
or an "affiliate" of a holding company (other than an exempt holding
company) or a public utility company within the meaning of the Public
Utility Holding Company Act of 1935, as amended;
(r) No consent, approval, authorization, order,
registration or qualification of or with any federal governmental agency
or body or any governmental agency or body of the State of Texas is
required for the sale of the Common Units or the consummation by any of
the Partnership, the Intermediate Partnership, the General Partners of
the transactions contemplated by this Agreement and the Final Prospectus,
except (i) such consents, approvals, authorizations, orders,
registrations or qualifications (a) as have been obtained, (b) as may be
required under state securities or Blue Sky laws,
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or (c) which, if not obtained, would not, individually or in the
aggregate, have a material adverse effect upon the ability of the
Partnership and the Intermediate Partnership to conduct their business as
described in the Final Prospectus;
(s) The Common Units outstanding immediately prior to the
closing under this Agreement are listed on the New York Stock Exchange;
(t) Northern Border Pipeline is validly existing as a
general partnership under the laws of the State of Texas, with full
partnership power and authority to own, lease and operate its properties
and conduct its business in all material respects as described in the
Final Prospectus; and
(u) Assuming that (i) the Underwriters purchase the Units
from each of Selling Unitholders without notice of any adverse claim
(within the meaning of Section 8-105 of the UCC), (ii) the Underwriters
make payment therefor as provided herein, (iii) the Units to be sold by
the Selling Unitholders are delivered to you in accordance with the
provisions of the Custody Agreement and (iv) the Underwriters obtain
control of the Units being sold by the Selling Unitholders (as provided
in Section 8-106(b) of the UCC), the Underwriters will have acquired all
of such Selling Unitholders respective rights and interest in such Units
free of any adverse claim (within the meaning of Section 8-105 of the
UCC).
In addition, such counsel shall state that in the course of preparation
by the Partnership of the Registration Statement and the Final Prospectus, such
counsel participated in conferences with officers and other representatives of
the Partnership and certain of the Subsidiaries, representatives of the
independent public accountants of the Partnership and, in the case of the Final
Prospectus, your representatives, at which the contents of the Registration
Statement, Final Prospectus and related matters were discussed. Such counsel
shall also state that although they have not conducted any independent
investigation with regard to the information set forth in the Registration
Statement or the Final Prospectus (except with respect to the foregoing
opinions) and are not (except as aforesaid) passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained therein, on the basis of the foregoing, no facts have come to such
counsel's attention that cause such counsel to believe that the Registration
Statement or any amendment thereto on the date it became effective, or as
supplemented or amended at the time of purchase or the additional time of
purchase, as the case may be, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that, as of its date or the
time of purchase or the additional time of purchase, as the case may be, the
Final Prospectus or any further amendment or supplement thereto contained an
untrue statement of a material fact or omitted a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. In making such
statement, such counsel may state that they do not express any comment with
respect to the financial statements and related schedules and other financial
data included or incorporated by reference in the Registration Statement or in
the Final Prospectus or any further amendment or supplement thereto (including,
without limitation, statements relating to projected cash distributions to the
limited partners of the Partnership) or any statement contained therein or
omitted therefrom in reliance upon and in conformity with
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written information furnished to the Partnership by any Underwriter through you
expressly for use therein. Such opinion shall state that the Selling Unitholders
are entitled to rely on the statements in this paragraph.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the Delaware Act, the Delaware Limited Liability
Company Act, the Delaware General Corporation Law and the laws of the States of
New York and Texas, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe to
be reliable and who are satisfactory to counsel for the Underwriters and (B) as
to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Partnership and public officials. References to the
Final Prospectus in this paragraph (b) include any supplements thereto at the
time of purchase or the additional time of purchase.
(ii) The Partnership shall have requested and caused Xxxxx X.
Place, Esq., General Counsel of Northern Plains, to have furnished to you her
opinion with respect to the Common Units, dated the time of purchase or the
additional time of purchase, as the case may be, and addressed to the
Underwriters, to the effect that:
(a) Other than as set forth in the Final Prospectus, to
her knowledge there are no legal or governmental proceedings pending to
which the Partnership or any of the Subsidiaries is a party or of which
any property of any of them is the subject which, if determined adversely
to such person, would individually or in the aggregate have a material
adverse effect on the Partnership and its Subsidiaries taken as a whole
(a "Material Adverse Effect"); and, to her knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others.
(b) Except as described in the Final Prospectus, to her
knowledge each of the Partnership and the Subsidiaries possesses, and is
operating in compliance in all material respects with, all certificates,
authorities or permits issued by the appropriate local, state or federal
regulatory agencies or bodies necessary to conduct its business as it is
currently conducted as described in the Final Prospectus, except for such
certificates, authorizations or permits which, if not obtained, would not
reasonably be expected to have, individually or in the aggregate, a
material adverse effect upon the ability of the Partnership and each of
the Subsidiaries to conduct its businesses in all material respects as
currently conducted as described in the Final Prospectus; to her
knowledge, the Partnership and each of the Subsidiaries possesses all
certificates, authorities or permits issued by the appropriate local,
state or federal regulatory agencies or bodies necessary to conduct its
business as proposed to be conducted as described in the Final
Prospectus, except for (a) certificates, authorizations or permits that,
if not obtained, would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect; and (b) certificates,
authorizations or permits that are reasonably expected to be obtained in
the ordinary course of business; and, except as described in the Final
Prospectus, none of the Partnership or any of the Subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would be expected to have a Material Adverse
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Effect. All government regulations, authorizations and procedures which
affect the Partnership or any of the Subsidiaries and the operation of
their respective businesses and that are required to be described in the
Final Prospectus are as described therein.
(c) The Partnership and each of the Subsidiaries (1) is in
compliance with any and all applicable Environmental Laws, (2) has
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct its business and (3) is in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, individually or in the aggregate, result in a
Material Adverse Effect; provided, such counsel may qualify such opinions
to her knowledge with respect to Bear Paw Investments, Bear Paw Energy,
Border Midwestern and Midwestern Gas.
(d) None of the Partnership or any of the Subsidiaries is:
(i) in violation of its charter, bylaws, agreement of limited or general
partnership or other governing document (except for the failure to mail
the reports identified in Section 8.3(b) of the Partnership Agreement),
(ii) in default in any material respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject, or (iii)
other than as set forth in the Final Prospectus, in violation in any
material respect of any law, ordinance, government rule, regulation or
court decree to which it or its properties or assets may be subject,
except for such violations and defaults that would not, individually or
in the aggregate, result in an Material Adverse Effect; provided, such
counsel may qualify the opinion in this clause (iii) to her knowledge
with respect to Bear Paw Investments, Bear Paw Energy, Border Midwestern
and Midwestern Gas.
(e) Since the date as of which information is given in the
Final Prospectus through the date hereof, and except as may otherwise be
disclosed in the Final Prospectus, the Partnership has not (i) issued or
granted any partner interests, (ii) incurred any material liability or
obligation, direct or contingent, other than liabilities and obligations
that were incurred in the ordinary course of business, (iii) entered into
any material transaction not in the ordinary course of business or (iv)
distributed any of the cash or other assets of the Partnership to any
partner.
(f) The Partnership and the Subsidiaries have good and
indefeasible title to all real and personal property necessary to own and
operate their businesses in all material respects as described in the
Final Prospectus, free and clear of all liens, claims, encumbrances and
defects except (1) as described in the Final Prospectus and (2) such as
do not materially interfere with the ownership, operation or benefits of
ownership of such businesses or materially increase the cost of operation
or ownership of such businesses, provided that, (a) with respect to the
Pipeline Properties, the foregoing shall only constitute a statement
that, to her knowledge, except as described in the Final Prospectus (i)
Northern Border Pipeline, Crestone, Bear Paw Energy and
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Midwestern Gas have sufficient title to enable them to use such Pipeline
Properties in their businesses as they have been used in the past and are
proposed to be used in the future as described in the Final Prospectus
and (ii) any lack of title has not had and is not reasonably likely to
have a Material Adverse Effect, and (b) with respect to any real
property, buildings and equipment held under lease by Northern Border
Pipeline, Crestone, Bear Paw Energy or Midwestern Gas, such real
property, buildings and equipment are held by Northern Border Pipeline,
and to her knowledge, by Crestone, Bear Paw Energy and Midwestern Gas
under valid, subsisting and enforceable leases with such exceptions as
have not had and are not reasonably likely to have a Material Adverse
Effect.
(g) Each of Northern Border Pipeline, Crestone, Bear Paw
Investments, Bear Paw Energy, Border Midwestern and Midwestern Gas was
duly formed (to her knowledge in the case of the latter four entities)
and is validly existing and in good standing under the laws of its
jurisdiction of formation and has full corporate, partnership or limited
liability company power and authority, as the case may be, to conduct the
activities conducted by it, to own or lease all the assets owned or
leased by it and to conduct its business as described in the Final
Prospectus. Each of Northern Border Pipeline, Crestone, Bear Paw Energy
and Midwestern Gas is duly licensed or qualified to do business and in
good standing as a foreign entity in all jurisdictions in which the
nature of the activities conducted by it or the character of the assets
owned or leased by it makes such licensing or qualification necessary,
except for such jurisdictions in which the failure so to qualify or
register would not have a material adverse effect upon it or subject it
or the Partnership to any material liability or disability. All of the
outstanding interests of Northern Border Pipeline have been duly
authorized and validly issued and are fully paid and non-assessable
(except as provided in the partnership agreement of Northern Border
Pipeline). The Intermediate Partnership owns a 70% general partner
interest in Northern Border Pipeline, and such interest is free and clear
of any liens, claims or encumbrances (except for such liens,
encumbrances, security interests, equities, charges or claims as are not,
individually or in the aggregate, material or except as described in the
Final Prospectus). All of the outstanding shares of Crestone have been
duly authorized and validly issued and are fully paid and non-assessable
and are owned by the Intermediate Partnership free and clear of all
liens, claims or encumbrances (except for such liens, encumbrances,
security interests, equities, charges or claims as are not, individually
or in the aggregate, material or except as described in the Final
Prospectus). All of the outstanding interests of Bear Paw Investments
have been duly authorized and validly issued and are fully paid and
non-assessable and are owned by the Intermediate Partnership free and
clear of any liens, claims or encumbrances (except for such liens,
encumbrances, security interests, equities, charges or claims as are not,
individually or in the aggregate, material or except as described in the
Final Prospectus). All of the outstanding interests of Bear Paw Energy
have been duly authorized and validly issued and are fully paid and
non-assessable and are owned by Bear Paw Investments free and clear of
any liens, claims or encumbrances (except for such liens, encumbrances,
security interests, equities, charges or claims as are not, individually
or in the aggregate, material or except as described in the Final
Prospectus). All of the outstanding shares of capital stock of Border
Midwestern have been duly authorized and validly issued and are fully
paid and non-assessable and are owned by the Intermediate
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Partnership free and clear of any liens, claims or encumbrances (except
for such liens, encumbrances, security interests, equities, charges or
claims as are not, individually or in the aggregate, material or except
as described in the Final Prospectus). All of the outstanding shares of
capital stock of Midwestern Gas have been duly authorized and validly
issued and are fully paid and non-assessable and are owned by Border
Midwestern free and clear of any liens, claims or encumbrances (except
for such liens, encumbrances, security interests, equities, charges or
claims as are not, individually or in the aggregate, material or except
as described in the Final Prospectus); provided such counsel may qualify
to her knowledge the opinions (i) as to due authorization, valid
issuance, full payment and non-assessability with respect to Bear Paw
Investments, Bear Paw Energy and Midwestern Gas and (ii) as to liens,
encumbrances and claims enforceable under the UCC with respect to Bear
Paw Investments and Bear Paw Energy.
In addition, such counsel shall state that in the course of preparation
by the Partnership of the Registration Statement and the Final Prospectus, such
counsel participated in conferences with officers and other representatives of
the Partnership and certain of the Subsidiaries, representatives of the
independent public accountants of the Partnership and, in the case of the Final
Prospectus, your representatives, at which the contents of the Registration
Statement, the Final Prospectus and related matters were discussed. Such counsel
shall also state that although she has not conducted any independent
investigation with regard to the information set forth in the Registration
Statement or the Final Prospectus (except with respect to the foregoing
opinions) and is not (except as aforesaid) passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained therein, on the basis of the foregoing and during the course of her
representation of Northern Plains, no facts have come to such counsel's
attention that cause such counsel to believe that the Registration Statement or
any amendment thereto on the date it became effective, or as amended or
supplemented at the time of purchase or the additional time of purchase, as the
case may be, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that, as of its date or the time of
purchase or the additional time of purchase, as the case may be, the Final
Prospectus or any further amendment or supplement thereto contained an untrue
statement of a material fact or omitted a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. In making such
statement, such counsel may state that she does not express any comment with
respect to the financial statements and related schedules and other financial
data included or incorporated by reference in the Registration Statement or in
the Final Prospectus or any further amendment or supplement thereto (including,
without limitation, statements relating to projected cash distributions to the
limited partners of the Partnership) or any statement contained therein or
omitted therefrom in reliance upon and in conformity with written information
furnished to the Partnership by any Underwriter through you expressly for use
therein. Such opinion shall also state that the Selling Unitholders are entitled
to rely on the statements in this paragraph.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Nebraska, to the extent she deems proper and specified in such opinion, upon the
opinion of other counsel of good standing whom she believes to be reliable and
who are satisfactory to counsel for the
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Underwriters and (B) as to matters of fact, to the extent she deems proper, on
certificates of responsible officers of the Partnership and public officials.
(iii) Cub Investment, LLC ("Cub") and Haddington/Chase Energy
Partners (Bear Paw) LP ("Haddington") shall have requested and caused X'Xxxxxxxx
LLP, counsel to Cub and Haddington, to have furnished to you their opinion dated
the time of purchase or the additional time of purchase, as the case may be, and
addressed to the Underwriters, to the effect that:
(a) This Agreement and the Custody Agreement have been
duly authorized, executed and delivered by each of Cub and Haddington,
and each of Cub and Haddington has the requisite power and authority to
sell, transfer and deliver in the manner provided in this Agreement the
Units being sold by each of Cub and Haddington hereunder;
(b) Assuming, without any investigation, the accuracy and
completeness of the information contained in the Final Prospectus under
the caption "Principal and Selling Unitholders," the statements therein,
insofar as such statements relate solely to each of Cub and Haddington as
Selling Unitholders, appear on their face to be appropriately responsive
in all material respects to the requirements of Item 507 of Regulation
S-K promulgated under the Act.
(c) No consent, approval, authorization or order of any
federal or New York court or governmental agency or body is required for
the consummation by each of Cub and Haddington of the transactions
contemplated herein, except such as may have been obtained under the Act
and such as may be required under the Act, the state securities or blue
sky laws of any jurisdiction and the rules of the National Association of
Securities Dealers, Inc. in connection with the sale of Units by each of
Cub and Haddington to the Underwriters hereunder and the purchase and
distribution thereof by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(d) Neither the sale of the Units nor the consummation of
any other of the transactions herein contemplated by each of Cub and
Haddington nor the fulfillment of the terms hereof by each of Cub and
Haddington will conflict with, result in a breach or violation of, or
constitute a default under (i) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which each of Cub and
Haddington is a party or by which each of Cub and Haddington is bound or
to which any of the property or assets of each of Cub and Haddington is
subject, which has been identified in an officer's certificate to such
counsel as being material, (ii) the certificate of formation of Cub, the
operating agreement of Cub, or the bylaws of Cub, (iii) the certificate
of limited partnership of Haddington or the limited partnership agreement
of Haddington, or (iv) any Applicable Law or any judgment, order or
decree known to such counsel to be applicable to Cub or Haddington of any
New York or federal court or administrative or governmental agency having
jurisdiction over Cub or Haddington under Applicable Law (with Applicable
Law defined in such opinion to mean the Delaware Limited Liability
Company Act, the Delaware Revised Uniform Limited Partnership Act
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and those statutes, rules and regulations of the State of New York and
the United States of America, which, in such counsel's experience, are
typically applicable to offerings of the type contemplated by this
Agreement, other than the United States federal securities laws, the
state securities or blue sky laws, antifraud laws, and the rules and
regulations of the National Association of Securities Dealers, Inc.); and
(e) Assuming that (i) the Underwriters purchase the Units
from each of Cub and Haddington without notice of any adverse claim
(within the meaning of Section 8-105 of the UCC), (ii) the Underwriters
make payment therefor as provided herein, (iii) the Units to be sold by
Cub and Haddington are delivered to you in accordance with the provisions
of the Custody Agreement and (iv) the Underwriters obtain control of the
Units being sold by each of Cub and Haddington (as provided in Section
8-106(b) of the UCC), the Underwriters will have acquired all of Cub's
and Haddington's respective rights and interest in such Units free of any
adverse claim (within the meaning of Section 8-105 of the UCC).
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of Cub, Haddington and public officials.
(iv) You shall have received from Xxxxxx Xxxxxxxx LLP, letters
dated, respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters, Cub and Haddington (with reproduced copies for each of the
Underwriters, Cub and Haddington) in the forms heretofore approved by UBS
Warburg LLC.
(v) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion of
Xxxxxxx & Xxxxx L.L.P., counsel for the Underwriters, dated the time of purchase
or the additional time of purchase, as the case may be, with respect to such
matters as may be reasonably requested by the Underwriters.
(vi) All filings, if any, required by Rule 424(b) shall have
been timely made; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(vii) Since the date as of which information is given in the
Final Prospectus there shall not have been any change or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Partnership or Intermediate
Partnership, taken as a whole, otherwise than as set forth or contemplated in
the Final Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Common Units being delivered at such time of purchase on the
terms and in the manner contemplated in the Final Prospectus;
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(viii) There shall have been furnished to you at such time of
purchase certificates satisfactory to you, signed on behalf of the Partnership
by an authorized officer thereof to the effect that:
(a) the representations and warranties of the Partnership
and the Intermediate Partnership in this Agreement are true and correct
in all material respects (except that all those representations and
warranties that are qualified as to their materiality are true and
correct in all respects) at and as of the time of purchase with the same
effect as if made at the time of purchase and the Partnership has
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the time of purchase;
(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Partnership's knowledge,
threatened; and
(c) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive
of any supplement thereto), there has been no material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Partnership and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(ix) The Registration Statement shall become effective, or if
Rule 430A under the Act is used, the Final Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) under the Act, at or before 5:00 P.M.,
New York City time, on the business day after the date of this Agreement unless
a later time shall be agreed to by the Partnership, the Selling Unitholders and
you in writing or by telephone, confirmed in writing; provided, however, that
the Partnership, the Selling Unitholders and you and any group of Underwriters,
including you, who have agreed hereunder to purchase in the aggregate at least
50% of the Firm Units may from time to time agree on a later date.
(x) (A) The Registration Statement and all amendments thereto,
or modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (B) The Final
Prospectus and all amendments or supplements thereto, or modifications thereof,
if any, shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they are made,
not misleading.
(xi) You shall have received signed letters, dated the date of
this Agreement, from each of Northern Plains, Pan Border, PEC Midwest L.L.C.,
each officer of the Partnership and member of the Partnership Policy Committee
who owns Common Units and each of the former owners of Bear Paw Investments
listed on Schedule C (the "Holders") hereto substantially in the form of Exhibit
A hereto; provided, however, that UBS Warburg shall not grant any release,
waiver of termination of the provisions of such letters to any Holder subject to
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such letters unless UBS Warburg grants such release, waiver or termination to
all Holders and to all Selling Unitholders pro rata based on the number of
Common Units held by such Holders and Selling Unitholders.
(xii) The Partnership and the Selling Unitholders shall have
furnished to you such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement and the Final
Prospectus as of the time of purchase and the additional time of purchase, as
the case may be, as you may reasonably request.
(xiii) Each of the Selling Unitholders will at the time of
purchase and the additional time of purchase, as the case may be, deliver to you
a certificate of the Selling Unitholders to the effect that the representations
and the warranties of such Selling Unitholder as set forth in this Agreement are
true and correct in all material respects as of each such date.
(xiv) Between the time of execution of this Agreement and the time
of purchase or additional time of purchase, as the case may be, there shall not
have occurred any downgrading, nor shall any notice or announcement have been
given or made of (i) any intended or potential downgrading or (ii) any review or
possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Partnership or the Intermediate
Partnership by any "nationally recognized statistical rating organization", as
that term is defined in Rule 436(g)(2) under the Act.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective when the parties hereto have executed and delivered this
Agreement.
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Units, if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration Statement
and the Final Prospectus, (y) there has been any material adverse and
unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and the Final Prospectus), in the earnings, business,
condition or properties of the Partnership and the Intermediate Partnership
taken as a whole, which would, in your judgment or in the judgment of such group
of Underwriters, make it impracticable to market the Units or, if at any time
prior to the time of purchase or, with respect to the purchase of any Additional
Units, the additional time of purchase, as the case may be, trading in
securities on the NYSE, the American Stock Exchange or the NASDAQ National
Market shall have been suspended or limitations or minimum prices shall have
been established on the NYSE, the American Stock Exchange or the NASDAQ National
Market or if a banking moratorium shall have been declared either by the United
States or New York State authorities, or if the United States shall have
declared war in accordance with its constitutional processes or there shall have
occurred any material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment or in the judgment
of such group of Underwriters, to make it impracticable to market the Units.
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32
If you or any group of Underwriters elects to terminate this Agreement as
provided in this Section 7, the Partnership, the Selling Unitholders and each
other Underwriter shall be notified promptly by letter or telegram.
If the sale to the Underwriters of the Units, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Partnership or the
Selling Unitholders shall be unable to comply with any of the terms of this
Agreement, the Partnership and the Selling Unitholders shall not be under any
obligation or liability under this Agreement (except to the extent provided in
Sections 4(i), 5 and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Partnership and the Selling Unitholders under
this Agreement (except to the extent provided in Section 9 hereof).
It is expressly agreed by the parties hereto that if (a) one or more
Selling Unitholders default in their obligation to deliver Firm Units to the
Underwriters pursuant to this Agreement, (b) the number of Firm Units to be
delivered by such defaulting Selling Unitholders does not exceed 10% of the
total number of Firm Units and (c) one or more of the non-defaulting Selling
Unitholders agree to deliver (in addition to the number of Firm Units to be
delivered by such non-defaulting Selling Unitholders pursuant to Section 1
hereof) the number of Firm Units agreed to be delivered by all such defaulting
Selling Unitholders, then this Agreement shall not be terminated.
8. Increase in Underwriters' Commitments. Subject to Sections 6 and
7, if any Underwriter shall default in its obligation to take up and pay for the
Firm Units to be purchased by it hereunder (otherwise than for reasons
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Units which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Units, the non-defaulting Underwriters shall
take up and pay for (in addition to the number of Firm Units they are obligated
to purchase pursuant to Section 1 hereof) the number of Firm Units agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Units shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as you may designate with the consent of
each Underwriter so designated or, in the event no such designation is made,
such Units shall be taken up and paid for by all non-defaulting Underwriters pro
rata in proportion to the aggregate number of Firm Units set forth opposite the
names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Selling Unitholders agree with the non-defaulting Underwriters
that they will not sell any Firm Units hereunder unless all of the Firm Units
are purchased by the Underwriters (or by substituted Underwriters selected by
you with the approval of the Partnership or selected by the Partnership with
your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters
or by the Partnership for a defaulting Underwriter or Underwriters in accordance
with the foregoing provision, the Partnership, Selling Unitholders or you shall
have the right to postpone the time of
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33
purchase for a period not exceeding five business days in order that any
necessary changes in the Registration Statement and the Final Prospectus and
other documents may be effected.
The term Underwriter as used in this agreement shall refer to and include
any Underwriter substituted under this Section 8 with like effect as if such
substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Units which the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Units which
all Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Partnership shall make arrangements within the five
business day period stated above for the purchase of all the Units which the
defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall be terminated without further act or deed and without any
liability on the part of the Partnership to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Partnership. Nothing in this paragraph, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
9. Indemnity and Contribution.
(i) The Partnership agrees to indemnify, defend and hold
harmless each Underwriter, its partners, directors and officers, and any person
who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
any such Underwriter or any such person may incur under the Act, the Exchange
Act, common law or otherwise, insofar as such loss, damage, expense, liability
or claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Final Prospectus or in the
Registration Statement as originally filed or in any amendment or supplement
thereto, or arises out of or is based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements made therein not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by or on behalf of any Underwriter through
you to the Partnership expressly for use in such Registration Statement or such
Final Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in such Registration Statement or such Final Prospectus or
necessary to make such information not misleading.
(ii) The Selling Unitholders, severally and jointly, agree to
indemnify and hold harmless the Partnership, each member of the Partnership
Policy Committee, each officer of the Partnership who signed the Registration
Statement, each Underwriter, the directors, officers, employees and agents of
each Underwriter and each person who controls the Partnership or any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Partnership to each
Underwriter but only with respect to any loss, damage, expense, liability or
claim arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in
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34
and in conformity with information furnished in writing by or on behalf of any
Selling Unitholder for use with reference to such Selling Unitholder expressly
for use in the Registration Statement or Final Prospectus. The Underwriters and
the Partnership acknowledge that the statements with respect to the Selling
Unitholders set forth under the caption "Principal and Selling Unitholders" in
the Final Prospectus constitute the only information furnished in writing by or
on behalf of the several Selling Unitholders for inclusion in the Final
Prospectus. Notwithstanding the foregoing, it is expressly agreed that no
Selling Unitholder shall be responsible, either pursuant to the indemnity and
contribution provisions of this Section 9 or as a result of any breach of this
Agreement, for losses, expenses, liability or claims arising out of or based
upon such untrue statement or omission or allegation thereof based upon
information furnished by any party other than such Selling Unitholder and, in
any event, no Selling Unitholder shall be responsible, either pursuant to the
indemnity and contribution provisions of this Section 9 or as a result of any
breach of this Agreement, for losses, expenses, liability or claims for an
amount in excess of the proceeds to be received by such Selling Unitholder
(before deducting expenses) from the sale of the Units hereunder. This indemnity
agreement will be in addition to any liability which the Selling Unitholder may
otherwise have.
If any action, suit or proceeding (together, a "Proceeding") is brought
against any person in respect of which indemnity may be sought against the
Partnership and/or the Selling Unitholders pursuant to the foregoing paragraphs
(i) and (ii), such person shall promptly notify the Partnership and/or the
Selling Unitholders in writing of the institution of such Proceeding and the
Partnership and/or the Selling Unitholders shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however, that
the omission to so notify the Partnership and/or the Selling Unitholders shall
not relieve the Partnership and/or the Selling Unitholders from any liability
which the Partnership and/or the Selling Unitholders may have to any such person
or otherwise. Such indemnified person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such person unless the employment of such counsel shall have been
authorized in writing by the Partnership and/or the Selling Unitholders in
connection with the defense of such Proceeding or the Partnership and/or the
Selling Unitholders shall not have, within a reasonable period of time in light
of the circumstances employed counsel to have charge of the defense of such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from,
additional to or in conflict with those available to the Partnership and/or the
Selling Unitholders (in which case the Partnership and/or the Selling
Unitholders shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties but the Partnership and/or the
Selling Unitholders may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of the
Partnership and/or the Selling Unitholders), in any of which events the
reasonable fees and expenses shall be borne by the Partnership and/or the
Selling Unitholders and paid as incurred (it being understood, however, that the
Partnership and/or the Selling Unitholders shall not be liable for the expenses
of more than one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). The
Partnership and/or the Selling Unitholders shall not be liable for any
settlement of any such Proceeding effected without its written consent but if
settled with the written consent of the Partnership and/or the Selling
Unitholders, the Partnership and/or the Selling Unitholders agree to indemnify
and hold
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35
harmless any such person from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(iii) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Partnership, each member of the Partnership Policy Committee,
each officer of the Partnership who signed the Registration Statement, and each
person who controls the Partnership within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act and the Selling Unitholders, their partners,
members, managers, directors and officers and any person who controls the
Selling Unitholders within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
the Partnership and the Selling Unitholders or any such person may incur under
the Act, the Exchange Act, common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in and in
conformity with information furnished in writing by or on behalf of such
Underwriter through you to the Partnership expressly for use in the Registration
Statement, the Final Prospectus or any amendment or supplement thereto, or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in such
Registration Statement, Final Prospectus or any amendment or supplement thereto
or necessary to make such information not misleading. The Partnership and the
Selling Unitholders acknowledge that the statements set forth in the last
paragraph of the cover page of the Final Prospectus regarding delivery of the
Units and, under the heading "Underwriting," (i) the list of Underwriters and
their respective participation in the sale of the Units, (ii) the sentences
related to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in the Final
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the Final Prospectus.
If any Proceeding is brought against the Partnership and/or the Selling
Unitholders or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Partnership
and/or the Selling Unitholders or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
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36
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses, provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter, from any liability
which such Underwriter may have to the Partnership and/or the Selling
Unitholders or any such person or otherwise. The Partnership and/or the Selling
Unitholders or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Partnership and/or the Selling Unitholders or such person unless the
employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from or additional
to or in conflict with those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which events the
reasonable fees and expenses shall be borne by such Underwriter and paid as
incurred (it being understood, however, that such Underwriter shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such Underwriter but if
settled with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Partnership and/or the Selling Unitholders and
any such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(iv) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (i), (ii) or (iii) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims in such proportions such that (i) the Underwriters shall
be responsible for the portion that the total underwriting discounts and
commissions received by the Underwriters bears to the aggregate public offering
price of the Units and (ii) the Partnership and the Selling
-35-
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Unitholders shall be severally responsible for the balance based on the relative
fault of the Partnership and the Selling Unitholders, which shall be determined
by reference to, among other things, whether the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission relates to
information supplied by the Partnership or the Selling Unitholders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, damages, expenses, liabilities and claims
referred to in this subsection shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any claim or Proceeding.
(v) The Partnership, the Selling Unitholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in subsection (iv) above. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Units underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damage which such Underwriter has otherwise been required to pay
by reason of such untrue statement or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9 are several
in proportion to their respective underwriting commitments and not joint.
(vi) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Partnership
and the Selling Unitholders contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, its directors and officers or any person (including each partner,
officer or director of such person) who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on
behalf of the Partnership, each member of the Partnership Policy Committee, each
officer of the Partnership who signed the Registration Statement, and each
person who controls the Partnership within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act and the Selling Unitholders, their directors,
members, managers or officers or any person who controls the Selling Unitholders
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and shall survive any termination of this Agreement or the delivery of the
Units. The Partnership, the Selling Unitholders and each Underwriter agree
promptly to notify each other of the commencement of any Proceeding against it
and, in the case of the Partnership and the Selling Unitholders, against any
member of the Partnership Policy Committee, any officer of the Partnership who
signed the Registration Statement, or any person who controls the Partnership
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act or
the Selling Unitholders' officers, members, managers or directors in connection
with the sale of the Units, or in connection with the Registration Statement or
the Final Prospectus.
10. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by facsimile and, if to
the Underwriters, shall be
-36-
38
sufficient in all respects if delivered or sent to UBS Warburg LLC, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Syndicate Department and to
Xxxxxxx Xxxxx Xxxxxx, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel, and, if to the Partnership, shall be sufficient in
all respects if delivered, sent or telefaxed to Xxxxx X. Place at (000) 000-0000
and confirmed to her at (000) 000-0000, and, if to a Selling Unitholder, shall
be sufficient in all respects if delivered or sent to the address set forth in
Schedule B hereto.
11. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. Entire Agreement; Amendments and Waivers. This Agreement
constitutes the entire agreement between the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties, and there
are no warranties, representations or other agreements between the parties in
connection with the subject matter hereof except as set forth specifically
herein or contemplated hereby. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. The failure of a party to exercise any right or remedy shall not be
deemed or constitute a waiver of such right or remedy in the future. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (regardless of whether similar), nor shall
any such waiver constitute a continuing waiver unless otherwise expressly
provided. Each party to this Agreement agrees that (i) no other party to this
Agreement (including its agents and representatives) had made any
representation, warranty, covenant or agreement to or with such party relating
to the transactions contemplated hereby, other than those expressly set forth
herein, and (ii) such party has not relied upon any representation, warranty,
covenant or agreement relating to the transactions contemplated hereby, other
than those referred to in clause (i) above.
13. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Partnership and the
Selling Unitholders and to the extent provided in Section 9 hereof the
controlling persons, directors and officers referred to in such Section, and
their respective successors, assigns, heirs, personal representatives and
executors and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
14. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
15. Successors and Assigns. This Agreement shall be binding upon the
Underwriters, the Partnership and the Selling Unitholders and their successors
and assigns and any successor or assign of any substantial portion of the
Partnership's and any of the Underwriters' respective businesses and/or assets.
-37-
39
16. Miscellaneous. UBS Warburg LLC, an indirect, wholly-owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS Warburg LLC. Because UBS Warburg LLC
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect to
sales and purchases of securities. Securities sold, offered or recommended by
UBS Warburg LLC are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Partnership, the Intermediate Partnership, the Selling Unitholders and the
several Underwriters.
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40
Very truly yours,
NORTHERN BORDER PARTNERS, L.P.
By: /s/ XXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------------
Title: Chief Financial and Accounting Officer
----------------------------------------
NORTHERN BORDER INTERMEDIATE
Limited Partnership
By: /s/ XXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------------
Title: Chief Financial and Accounting Officer
----------------------------------------
SELLING UNITHOLDERS:
Cub Investment, LLC
By: Haddington Energy Partners LP, Manager
By: Haddington Ventures, L.L.C., General
Partner
By: /s/ M. XXXXX XXXXX
-------------------------------------------
Name: M. Xxxxx Xxxxx
-----------------------------------------
Title: Senior Vice President
----------------------------------------
HADDINGTON/CHASE ENERGY PARTNERS
(Bear Paw) LP
By: Haddington Ventures, L.L.C., General
Partner
By: /s/ M. XXXXX XXXXX
-------------------------------------------
Name: M. Xxxxx Xxxxx
-----------------------------------------
Title: Senior Vice President
----------------------------------------
R&K VENTURES LLLP
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------------
Title: General Partner
----------------------------------------
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41
/s/ XXXXX X. XXXXXX
------------------------------------------
Xxxxx X. Xxxxxx
/s/ XXXXX XXXX
------------------------------------------
Xxxxx Xxxx
/s/ XXXXXXXX XXXXX
------------------------------------------
Xxxxxxxx Xxxxx
/s/ XXXXXXXXX XXXX XXXXXXX
------------------------------------------
Xxxxxxxxx Xxxx Xxxxxxx
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42
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
UBS Warburg LLC
Xxxxxxx Xxxxx Barney Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Brothers Inc.
Xxxx Xxxxxxxx Incorporated
First Union Securities, Inc.
X.X. Xxxxxx Securities Inc.
By: UBS Warburg LLC
By: /s/ XXXXXXX XXXXXXXX
-------------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------------
Title: Director
----------------------------
By: /s/ XXXXX XXXXX
-------------------------------
Name: Xxxxx Xxxxx
-----------------------------
Title: Associate Director
----------------------------
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SCHEDULE A
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
UBS Warburg LLC............................ 988,000
Xxxxxxx Xxxxx Xxxxxx Inc................... 988,000
X. X. Xxxxxxx & Sons, Inc.................. 475,000
Xxxxxx Brothers Inc........................ 475,000
Xxxx Xxxxxxxx Incorporated ................ 342,000
First Union Securities, Inc 342,000
X.X. Xxxxxx Securities Inc. ............... 190,000
Total ..................................... 3,800,000
===========
Schedule X-0
00
XXXXXXXX X
MAXIMUM NUMBER OF
NUMBER OF UNITS ADDITIONAL UNITS
SELLING UNITHOLDER: TO BE SOLD TO BE SOLD
------------------ ---------- ----------
Cub Investments LLC
c/o X.X. Xxxxxx Partners (23A
SBIC), LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxxxxx Xxxxxxx 3,018,323 461,917
Haddington/Chase Energy Partners
(Bear Paw) LP
x/x Xxxxxxxxxx Xxxxxxxx, X.X.X.
0000 Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention Mr. Xxxxx Xxxxx 706,255 108,083
R&K Ventures LLLP 43,468 0
Xxxxxxxx Xxxxx 24,023 0
Xxxxx Xxxxxx 3,500 0
Xxxxx Xxxx 1,000 0
Xxxxxxxxx Xxxx Xxxxxxx 3,431 0
------------ ------------
Total.......................... 3,800,000 570,000
============ ============
Schedule B-1
45
SCHEDULE C
1. Cleveptnrs
2. Xxxxxx Xxxxxxx
3. Xxxxxx Xxxxx
4. Xxxxxxx Xxxxxxxxx
5. Xxxxxx Xxxxxx, Xx.
6. Xxxx Xxxxxxxx
7. Xxxxxxx XxxxxXxxxxxx
8. Xxxxx Xxxxx
9. Xxxx. Xxxxxxx Irrevocable Trust fbo Eliz. Edelman
10. Thom. Edelman Irrevocable Trust fbo Xxxxxxx Xxxxxxx
11. Bear Cub Investments, LLC
Schedule C-1
46
EXHIBIT A
[LETTERHEAD OF OFFICER, DIRECTOR OR MAJOR UNITHOLDER OF
PARTNERSHIP AND FORMER OWNERS OF BEAR PAW INVESTMENTS]
Northern Border Partners, L.P.
Public Offering of Common Units
August ___, 2001
UBS Warburg LLC
Xxxxxxx Xxxxx Barney Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Brothers, Inc.
Xxxx Xxxxxxxx Incorporated
First Union Securities, Inc.
XX Xxxxxx Securities, Inc.
as Managing Underwriters
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Northern Border
Partners, L.P., a Delaware limited partnership (the "Partnership"), Northwest
Border Pipeline Company, a Delaware corporation, the Selling Unitholders named
therein and each of you as managing underwriters of a group of Underwriters
named therein, relating to an underwritten public offering of Common Units (the
"Common Units"), of the Partnership.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of UBS Warburg LLC, offer, sell, contract to sell, pledge or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
Common Units of the Partnership or any securities convertible into, or
exercisable or exchangeable for such Common Units, or publicly announce an
intention to effect any such transaction, for a period of sixty (60) days after
the date of this Agreement, other than Common Units disposed of as bona fide
gifts approved by UBS Warburg LLC and Xxxxxxx Xxxxx Xxxxxx Inc.
Exhibit A-1
47
If for any reason the Underwriting Agreement shall be terminated prior to
the time of purchase or the additional time of purchase, the agreement set forth
above shall likewise be terminated. Yours very truly,
[Signature of officer, director, major
unitholder or former owner of Bear Paw
Investments]
[Name and address of officer, director,
major Unitholder or former owner of Bear
Paw Investments]
Exhibit A-2
