EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of April 29, 2002, by and among NORTHERN BORDER PIPELINE
COMPANY, a Texas general partnership (the "Company") and XXXXXXX XXXXX XXXXXX,
INC., in its capacity as initial purchaser and as representative of each of the
other initial purchasers named in Schedule A hereto (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated April
23, 2002, by and among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $225,000,000 aggregate principal amount of the Company's 6.25%
Senior Notes due 2007 (the "Senior Notes"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the Initial Purchasers' obligations thereunder, the Company has
agreed to provide to the Initial Purchasers and their respective direct and
indirect transferees and assigns the registration rights set forth in this
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Advice: As defined in Section 6(d) hereof.
Affiliate: With respect to any specified Person, means any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Authorized Officer: Any of the President, the Vice President, Finance
or any vice president of the Operator, acting singly.
Blue Sky Application: As defined in Section 8(a).
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Broker-Dealer Transfer Restricted Securities: New Senior Notes that
are acquired by a Broker-Dealer in the Exchange Offer in exchange for Senior
Notes that such Broker-Dealer acquired for its own account as a result of
market-making activities or other trading activities (other than Senior Notes
acquired directly from the Company or any of its Affiliates).
Business Day: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble to this Agreement and also
includes the Company's successors.
Company Indemnitees: As defined in Section 8(b).
Consummate: The Exchange Offer shall be deemed "consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the New Senior Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the minimum period required pursuant to Section 3(b) hereof, and (iii) the
delivery by the Company to the Trustee under the Indenture of New Senior Notes
in the same aggregate principal amount as the aggregate principal amount of
Senior Notes that were tendered by Holders thereof pursuant to the Exchange
Offer.
Consummation Target Date: As defined in Section 3(b) hereof.
Damages Payment Date: With respect to the Transfer Restricted
Securities, each Interest Payment Date until the earlier of (i) the date on
which Liquidated Damages are no longer payable and (ii) maturity of the Notes.
Depositary: The Depository Trust Company, or any other depositary
appointed by the Company, including any agent thereof; provided, however, that
any such depositary must at all times have an address in the Borough of
Manhattan, in The City of New York.
Definitive Notes: As defined in the Indenture.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange Offer: The registration by the Company under the Securities
Act of the New Senior Notes pursuant to an Exchange Offer Registration Statement
pursuant to which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding Transfer
Restricted Securities held by such Holders for New Senior Notes in an aggregate
principal amount equal to the aggregate principal amount of the Transfer
Restricted Securities tendered in such exchange offer by such Holders.
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Exchange Offer Registration Statement: An Exchange Offer registration
statement on Form S-4 (or, if applicable, on another appropriate form), covering
the issuance of New Senior Notes in exchange for Senior Notes and all amendments
and supplements to such Registration Statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Senior Notes (a) to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Securities Act, (b) to
certain institutional "accredited investors" as such term is defined in Rule
501(a)(1),(2),(3) or (7) of Regulation D under the Securities Act and (c)
outside the United States to certain persons in reliance on Regulation S under
the Securities Act.
Final Memorandum: As defined in the Purchase Agreement.
General Partners: Northern Border Intermediate Limited Partnership and
TC PipeLines Intermediate Limited Partnership.
Global Note Holder: A "Holder" as defined in the Indenture.
Holder: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of April 29, 2002 between the
Company and Bank One Trust Company, N.A., as trustee (the "Trustee"), pursuant
to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Notes.
Liquidated Damages: As defined in Section 5 hereof.
NASD: National Association of Securities Dealers, Inc.
Notes: The Senior Notes and the New Senior Notes.
New Senior Notes: The Company's 6.25% Senior Notes due 2007 having
terms identical to the Senior Notes except that (i) interest thereon shall
accrue from the last date on which interest was paid on the Senior Notes or, if
no such interest has been paid, from the Closing Date; (ii) the transfer
restrictions thereon shall be eliminated; and (iii) provisions relating to
Liquidated Damages shall be eliminated in exchange for Senior Notes pursuant to
the Exchange Offer and that will be issued under the Indenture (i) in the
Exchange Offer; (ii) upon request of any Holder of Senior Notes covered by a
Shelf Registration Statement, in exchange for such Senior Notes; and (iii) upon
request of any Holder of Senior Notes in connection with a distribution of such
Senior Notes to the public pursuant to Rule 144 (or any similar provision then
in force, but not Rule 144A) under the Securities Act.
Operator: Northern Plains Natural Gas Company, a Delaware corporation.
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Person: An individual, partnership, corporation, limited liability
company, joint venture, association, joint-stock company, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Record Holder: With respect to any Damages Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of New Senior Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to a
Shelf Registration Statement, in each case (i) which is filed pursuant to the
provisions of this Agreement, and (ii) including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer that holds Broker-Dealer
Transfer Restricted Securities.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939, as amended, as in effect on the
date of the Indenture.
Transfer Restricted Securities: Each Senior Note, until the earliest
to occur of (a) the date on which such Senior Note is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Securities Act, (b)
the date on which such Senior Note has been effectively registered under the
Securities Act and disposed of in accordance with a Shelf Registration
Statement, (c) the date on which such Senior Note is distributed to the public
pursuant to Rule 144 or is saleable pursuant to Rule 144(k) under the Securities
Act and (d) the date on which such Senior Note or New Senior Note, as the case
may be, is distributed by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including delivery of
the Prospectus contained therein).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
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SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Company shall (i) cause to be filed
with the Commission as soon as practicable after the Closing Date, but in no
event later than 120 days after the Closing Date, the Exchange Offer
Registration Statement under the Securities Act relating to the New Senior Notes
and the Exchange Offer, (ii) use its reasonable best efforts to cause such
Exchange Offer Registration Statement to become effective at the earliest
possible time, but in no event later than 180 days after the Closing Date, (iii)
in connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause such
Exchange Offer Registration Statement to become effective, (B) if applicable,
file a post-effective amendment to such Exchange Offer Registration Statement
pursuant to Rule 430A under the Securities Act and (C) cause all necessary
filings, if any, in connection with the registration and qualification of the
New Senior Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, commence and
Consummate the Exchange Offer. The Exchange Offer Registration Statement shall
be on the appropriate form permitting registration of the New Senior Notes to be
offered in exchange for the Transfer Restricted Securities and to permit sales
of Broker-Dealer Transfer Restricted Securities by Broker-Dealers as
contemplated by Section 3(c) below.
(b) The Company shall use its reasonable best efforts to cause the
Exchange Offer Registration Statement to be effective continuously for a period
of 30 days from the date on which the Exchange Offer Registration Statement is
declared effective and shall keep the Exchange Offer open for a period of not
less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The Company shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the Notes shall be included in the Exchange Offer
Registration Statement. The Company shall use its reasonable best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 210 days after the Closing Date (the "Consummation Target
Date").
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
that any Restricted Broker-Dealer who holds Senior Notes that are Transfer
Restricted Securities and that
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were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Transfer Restricted
Securities acquired directly from the Company or one of its Affiliates) may
exchange such Senior Notes pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with its initial sale of the
New Senior Notes received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such resales of Broker-Dealer Transfer Restricted
Securities that the Commission may require in order to permit such sales
pursuant thereto but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by the Commission as a result of a change in
policy after the date of this Agreement.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Broker-Dealer Transfer Restricted
Securities acquired by Restricted Broker-Dealers and to ensure that it conforms
with the requirements of this Agreement, the Securities Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of 120 days from the date on which the Exchange Offer Registration
Statement is declared effective or, if shorter, until all Broker-Dealer Transfer
Restricted Securities have been sold thereunder.
The Company shall provide sufficient copies of the latest version of
such Prospectus to such Restricted Broker-Dealers promptly upon request at any
time during such 120 day period in order to facilitate such sales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement or to Consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied
with) or (ii) if any Holder of Transfer Restricted Securities shall notify the
Company within twenty (20) Business Days of the Consummation of the Exchange
Offer that (A) such Holder is prohibited by applicable law or Commission policy
from participating in the Exchange Offer, or (B) such Holder may not resell the
New Senior Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, or (C) such Holder is a Broker-Dealer and holds Senior Notes acquired
directly from the Company or one of its Affiliates, then the Company shall:
(x) cause to be filed a shelf registration statement pursuant to Rule
415 under the Securities Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "Shelf Registration
Statement") on or prior to the earliest to occur of (1) the 60th day after
the date on which the Company receives notice from the
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Commission or determines that it is not required to file the Exchange Offer
Registration Statement pursuant to clause (i) above, (2) the 60th day after
the date on which the Company receives notice from a Holder of Transfer
Restricted Securities as contemplated by clause (ii) above, and (3) the
150th day after the Closing Date (such earliest date being the "Shelf
Filing Deadline"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities the Holders of which shall
have provided the information required pursuant to Section 4(b) hereof; and
(y) use its reasonable best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the 60th
day after the Shelf Filing Deadline.
The Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by and subject to the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for sales of Transfer Restricted
Securities by the Holders thereof entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of two years, (plus any extensions as
provided by Section 6(c)(i)) following the date on which such Shelf Registration
Statement first becomes effective under the Securities Act or such shorter
period ending when all of the Transfer Restricted Securities available for sale
thereunder have been sold pursuant thereto or have ceased to be outstanding
(whether as a result of redemption or repurchase).
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 15 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have provided all such reasonably requested information. Each
Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement
are not filed with the Commission on or prior to the date specified for such
filing in this Agreement, then additional amounts shall accrue on the principal
amount of the Transfer Restricted Securities at a rate of $2.50 per $1,000
principal amount of Transfer Restricted Securities per annum from the date such
filing was required; (ii) any of such Registration Statements have not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), then
additional amounts shall accrue on the principal amount of the Transfer
Restricted Securities at a rate of $2.50 per $1,000 principal
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amount of Transfer Restricted Securities per annum from the day following the
Effectiveness Target Date; (iii) the Exchange Offer has not been Consummated on
or prior to the Consummation Target Date, then additional amounts shall accrue
on the principal amount of the Transfer Restricted Securities at a rate of $2.50
per $1,000 principal amount of Transfer Restricted Securities per annum from the
day following the Consummation Target Date; or (iv) except as provided in
Section 6(c)(i) hereof, any Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be effective or fail
to be usable for its intended purpose without being succeeded within 30 days by
a post-effective amendment to such Registration Statement, the effectiveness of
another Registration Statement or the use of the Prospectus (as amended or
supplemented) is again permitted that cures such failure, then additional
amounts shall accrue on the principal amount of the Transfer Restricted
Securities at a rate of $2.50 per $1,000 principal amount of Transfer Restricted
Securities per annum from the 31st day following such Registration Statement
ceasing to be effective; or (v) prior to or on the 30th or 60th day, as the case
may be, of any Suspension Period (as defined in Section 6(c)(i), such suspension
has not been terminated or ( B) Suspension Periods exceed an aggregate of 90
days in any 360-day period, then additional amounts shall accrue on the
principal amount of the Transfer Restricted Securities per annum from and
including the day of the default under this clause (v) at a rate of $2.50 per
$1,000 principal amount of Transfer Restricted Securities per annum (each such
event referred to in clauses (i) through (iv), a "Registration Default"). The
additional amounts owing pursuant to the preceding clauses (i) through (iv)
shall be increased by $2.50 per $1,000 principal amount of Transfer Restricted
Securities per annum each 90-day period that such Registration Default
continues, provided such additional amounts do not exceed the Maximum Rate (as
defined below).
All accrued Liquidated Damages (as defined below) shall be paid to the
Holders of Transfer Restricted Securities by the Company on each Interest
Payment Date in arrears generally in accordance with the provisions in the
Indenture regarding payment of interest. Notwithstanding anything to the
contrary set forth herein, (A) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case
of (i) above, (B) upon the effectiveness of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case
of (ii) above, (C) upon Consummation of the Exchange Offer, in the case of (iii)
above, or (D) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), to again be declared effective or the Prospectus to be made usable
in the case of (iv) above, or (E) upon the cessation of the applicable
Suspension Period in the case of a Registration Default described in (v) above,
the Liquidated Damages payable with respect to the Transfer Restricted
Securities as a result of such clause Registration Default ("Liquidated
Damages"), as applicable, shall cease to accrue. Liquidated Damages on the
Senior Notes may not exceed, in the aggregate, $10.00 per annum per $1,000
principal amount of Transfer Restricted Securities (the "Maximum Rate").
All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such security shall have
been satisfied in full.
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SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all applicable provisions of
Section 6(c) below, shall use its reasonable best efforts to effect such
exchange to permit the sale of Broker-Dealer Transfer Restricted Securities
being sold in accordance with the intended method or methods of distribution
thereof (which shall be in a manner consistent with the terms of this
Agreement), and shall comply with all of the following provisions:
(i) If, following the date hereof and prior to the Consummation of the
Exchange Offer, there has been published a change in Commission policy with
respect to exchange offers such as the Exchange Offer, such that in the
reasonable opinion of counsel to the Company there is a substantial
question as to whether the Exchange Offer is permitted by applicable law or
Commission policy, the Company hereby agrees to seek a no-action letter or
other favorable decision from the Commission staff allowing the Company to
Consummate an Exchange Offer for such Senior Notes. The Company hereby
agrees to pursue the issuance of such a decision to the Commission staff
level but shall not be required to take commercially unreasonable action to
effect a change of Commission policy. The Company hereby agrees, however,
to take all such other actions as are reasonably requested by the
Commission or the Commission staff or otherwise required in connection with
the issuance of such decision, including, without limitation, to (A)
participate in telephonic conferences with the Commission or the Commission
staff, (B) deliver to the Commission or the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if any,
upon which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursue a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an Affiliate of
the Company, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any Person to participate in,
a distribution (within the meaning of the Securities Act) of the New Senior
Notes to be issued in the Exchange Offer and (C) it is acquiring the New
Senior Notes in its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise reasonably
cooperate in the Company's preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Exchange Offer to participate in a distribution of the securities
to be acquired in the Exchange Offer (1) could not under Commission policy
as in effect on the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5,
1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2,
1993, and similar no-action letters (including any no-action letter
obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale
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transaction and that such a secondary resale transaction should be covered
by an effective registration statement containing the selling security
holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of New Senior Notes obtained by such
Holder in exchange for Senior Notes acquired by such Holder directly from
the Company or an Affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action
letter obtained pursuant to clause (i) above, (B) including a
representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the New Senior Notes to be
received in the Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the Exchange Offer is
acquiring the New Senior Notes in its ordinary course of business and has
no arrangement or understanding with any Person to participate in the
distribution of the New Senior Notes received in the Exchange Offer and (C)
any other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause (i) above.
(iv) The Company shall (A) include in the Exchange Offer Registration
Statement a "Plan of Distribution" section covering the use of the
Prospectus included in the Exchange Offer Registration Statement by
broker-dealers who have exchanged their Senior Notes for New Senior Notes
for the resale of such New Senior Notes, (B) furnish to each broker-dealer
who desires to participate in the Exchange Offer, without charge, as many
copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary Prospectus, and any amendment or
supplement thereto, as such broker-dealer may reasonably request, (C)
include in the Exchange Offer Registration Statement a statement that any
broker-dealer who holds Senior Notes acquired for its own account as a
result of market-making activities or other trading activities (a
"Participating Broker-Dealer"), and who receives New Senior Notes for
Senior Notes pursuant to the Exchange Offer, may be a statutory underwriter
and must deliver a prospectus meeting the requirements of the Securities
Act in connection with any resale of such New Senior Notes, (D) subject to
the last paragraph of this Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto, by any broker-dealer in connection with
the sale or transfer of the New Senior Notes covered by the Prospectus or
any amendment or supplement thereto, and (E) include in the transmittal
letter or similar documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer the following provision:
"The undersigned (A) is not an Affiliate of the Company, (B) is not
engaged in, and does not intend to engage in, and has no arrangement
or understanding with any Person to participate in, a distribution
(within the meaning of the Securities Act) of the New Senior Notes to
be issued in the Exchange Offer and (C) is
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acquiring the New Senior Notes in its ordinary course of business. In
addition, all such Holders of Senior Notes shall otherwise reasonably
cooperate in the Company's preparations for the Exchange Offer. Each
Holder hereby acknowledges and agrees that any Broker-Dealer and any
such Holder using the Exchange Offer to participate in a distribution
of the securities to be acquired in the Exchange Offer (1) could not
under SEC Staff policy as in effect on the date of this Agreement rely
on the position of the SEC Staff enunciated in Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the SEC Staff's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement
containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K if the resales are of New
Senior Notes obtained by such Holder in exchange for Senior Notes
acquired by such Holder directly from the Company or an Affiliate
thereof."
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company will as expeditiously as possible, and in any event
within the time periods and otherwise in accordance with the provisions hereof,
prepare and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act, which form shall
be available for the sale of the Transfer Restricted Securities in accordance
with the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Exchange
Offer Registration Statement and the related Prospectus required to permit
resales of Transfer Restricted Securities by Restricted Broker-Dealers), the
Company shall:
(i) subject to any notice by the Company of the existence of any fact
or circumstance described in Section 6(c)(iii)(D), use its reasonable best
efforts to keep such Registration Statement continuously effective and
provide all requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; upon the occurrence of any event
that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B)
not to be effective and usable for resale of
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Transfer Restricted Securities during the period required by this
Agreement, the Company shall (1) file promptly an appropriate amendment to
such Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and (2) in the case of either clause (A) or (B),
use its reasonable best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable
thereafter; notwithstanding the foregoing, the Company may suspend the
effectiveness of the Shelf Registration Statement by written notice to the
Holders for a period not to exceed an aggregate of 30 days in any 90-day
period (each such period, a "Suspension Period") if:
(x) an event occurs and is continuing as a result of which the
Shelf Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein
would, in the Company's judgment, 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
(y) the Company determined in good faith that the disclosure of
such event at such time would be significantly detrimental to the
Company and its subsidiaries;
provided that, in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which the Company determines in good faith would be
reasonably likely to impede the company's ability to consummate such
transaction, the Company may extend a Suspension Period from 30 days to 60
days; provided, however, that Suspension Periods shall not exceed an
aggregate of 90 days in any 360-day period. The Company shall not be
required to specify in the written notice to the Holders the nature of the
event giving rise to the Suspension Period.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold (provided that the Company shall not
be required to comply with the foregoing during any Suspension Period);
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Securities Act, and to comply fully with the applicable provisions of
Rules 424, 430A and 462, as applicable under the Securities Act in a timely
manner (provided that the Company shall not be required to comply with the
foregoing during any Suspension Period); and comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to
the Prospectus;
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(iii) advise the managing underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment thereto has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Securities Act or of the suspension
by any state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue in any material respect, or that
requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. If
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company
shall use its reasonable best efforts to obtain the withdrawal or lifting
of such order at the earliest practicable time;
(iv) upon written request, furnish to the Initial Purchasers, and,
upon written request, to each of the selling Holders and each of the
managing underwriter(s) in connection with such sale, if any, before filing
with the Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such Registration
Statement or Prospectus, which documents will be subject to the review of
such selling Holders and underwriter(s) in connection with such sale, if
any, for a period of at least five Business Days, and the Company will not
file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus to which a
selling Holder of Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s) in connection with such sale,
if any, shall reasonably object within five Business Days after the receipt
thereof. A selling Holder or managing underwriter in connection with such
sale, if any, shall be deemed to have reasonably objected to such filing
(A) if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements of the
Securities Act or (B) if any of the information furnished to the Company by
the selling Holder or managing underwriter in connection with such sale, if
any, and included in such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed is incorrect in any
respect;
(v) upon written request, promptly prior to the filing of any document
that is to be incorporated by reference into a Shelf Registration Statement
or Prospectus, provide copies of such document to the selling Holders and
to the underwriter(s) in connection with such sale, if any, make the
Company's representatives available for discussion of
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such document and other customary due diligence matters, and, with respect
to a Shelf Registration Statement, include such information in such
document prior to the filing thereof as such selling Holders or
underwriters, if any, reasonably may request;
(vi) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Transfer Restricted
Securities and any underwriters participating in any disposition pursuant
to a Shelf Registration Statement and any counsel or accountant retained by
such Holders or underwriters, all financial and other records, pertinent
corporate documents and properties of the Company or the Operator, if
applicable, reasonably requested by any such persons, and cause the
respective officers, directors, employees, and any other agents of the
Operator to supply all information reasonably requested by any such
representative, underwriter, counsel or accountant in connection with a
Registration Statement; provided that the foregoing inspection and
information gathering shall be coordinated on behalf of the selling Holders
under a Shelf Registration Statement by one firm of counsel, which firm
shall be Shearman & Sterling, until another firm shall be designated in
writing for the Company by a majority of the selling Holders whose Transfer
Restricted Securities are included in the Shelf Registration Statement, and
provided further, that any such records, documents, properties and such
information that is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such records, documents, properties
or information shall be kept confidential by any such representative,
underwriter, counsel or accountant and shall be used only in connection
with such Shelf Registration Statement, unless such information has become
available (not in violation of this Agreement) to the public generally or
through a third party without an accompanying obligation of
confidentiality, and except that such representative, underwriter, counsel
or accountant shall have no liability, and shall not be in breach of this
provision, to the extent, and only to the extent that disclosure of such
confidential information is made in connection with a court proceeding or
otherwise required by law, and the Company shall be entitled to request
that such representative, underwriter, counsel or accountant sign a
confidentiality agreement to the foregoing effect. Each such person will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company unless
and until such is made generally available to the public through no fault
or action of such person. Each selling Holder of such Transfer Restricted
Securities will be required to further agree that it will, upon learning
that disclosure of confidential information is required, give notice to the
Company to allow the Company at its expense to undertake appropriate action
to prevent disclosure of the confidential information;
(vii) (i) in the case of an Exchange Offer, a reasonable time prior to
the filing of any Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange Offer Registration
Statement or amendment or supplement to a Prospectus, provide copies of
such document to the Initial Purchasers, and make such changes in any such
document prior to the filing thereof as the Initial Purchasers or their
counsel may reasonably request; (ii) in the case of a Shelf Registration, a
reasonable time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf Registration
Statement or amendment or supplement to such Prospectus, provide copies of
such document to the Holders of Transfer Restricted
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Securities, to the Initial Purchasers, to counsel on behalf of the Holders
and to the underwriter or underwriters of an underwritten offering of
Transfer Restricted Securities, if any, and make such changes in any such
document prior to the filing thereof as counsel to the Initial Purchasers,
the Holders or any underwriter may reasonably and timely request; and (iii)
cause the representatives of the Company to be available for discussion of
such document as shall be reasonably requested by the Holders of Transfer
Restricted Securities, the Initial Purchasers on behalf of such Holders or
any underwriter, and shall not at any time make any filing of any such
document of which such Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall not have previously been
advised and furnished a copy or to which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel or any underwriter
shall reasonably object within five Business Days after receipt of the
documents specified in (i) and (ii) above from the Company, it being agreed
that any such person shall be deemed to have reasonably objected to such
filing (A) if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission or fails to comply with the applicable
requirements of the Securities Act or (B) if any of the information
furnished to the Company by the selling Holder or managing underwriter in
connection with such sale, if any, and included in such Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed
to be filed is incorrect in any respect;
(viii) if requested by any selling Holders or the managing
underwriter(s) in connection with such sale, if any, promptly incorporate
in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such managing
underwriter(s), if any, reasonably may request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to such underwriter(s), the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted Securities to be
sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(ix) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated by the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Notes covered thereby or the managing underwriter(s) in connection with
such sale, if any, unless such Transfer Restricted Securities are already
so rated;
(x) furnish to each selling Holder and each of the managing
underwriter(s) in connection with such sale, if any, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
-15-
(xi) deliver to each selling Holder and each of the managing
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; subject to the terms of
this Agreement, the Company hereby consents to the use of the Prospectus
and any amendment or supplement thereto by each of the selling Holders and
each of the underwriter(s), if any, in connection with the offering and the
sale of the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xii) enter into such agreements (including an underwriting
agreement), and make such representations and warranties with respect to
the business of the Company as are customarily addressed in representations
and warranties made by issuers to underwriters in Underwritten Offerings,
and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to any Registration Statement contemplated by this
Agreement, all to such extent as may reasonably be requested by the Initial
Purchasers or by any Holder of Transfer Restricted Securities or managing
underwriter in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and whether or not
an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company shall:
(A) furnish to each Initial Purchaser, each selling Holder and
each managing underwriter, if any, in such substance and scope as they
may reasonably request and as are customarily made by issuers to
underwriters in primary Underwritten Offerings, upon the date of the
Consummation of the Exchange Offer and, if applicable, the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed on behalf of
the Company by any Authorized Officer, confirming, as of the date
thereof, the matters set forth in paragraph (c) of Section 6 of
the Purchase Agreement and such other matters as such parties may
reasonably request;
(2) opinions, dated the date of Consummation of the Exchange
Offer or of effectiveness of the Shelf Registration Statement, as
the case may be, of counsel or counsels for the Company, covering
the matters set forth in paragraph (a) of Section 6 of the
Purchase Agreement and such other matters as such parties may
reasonably request, and in any event including a statement to the
effect that such counsel for the Company has participated in
conferences with officers of the Operator and other
representatives of the Company, representatives of the
independent public accountants for the Company and
representatives of and counsel to the Initial Purchasers at which
the contents of such Registration Statement and the related
Prospectus were discussed and, although such counsel is not
passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
therein (except as
-16-
specifically stated in such opinion), on the basis of the
foregoing (and rely with respect to factual matters, upon
statements of officers of the Operator), no facts have come to
the attention of such counsel that have caused such counsel to
believe that the applicable Registration Statement, at the time
such Registration Statement or any post-effective amendment
thereto became effective, and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation, contained
an 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, in light of the circumstances under which
they were made, not misleading, or that the Prospectus contained
in such Registration Statement as of its date and, in the case of
the opinion dated the date of Consummation of the Exchange Offer,
as of the date of Consummation, contained an untrue statement of
a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it
being understood that such counsel need make no comment as to the
financial statements and related statistical or financial
information and schedules included in any Registration Statement
contemplated by this Agreement or the related Prospectus) or any
information included therein on the basis of information
furnished by the representatives or counsel to any Initial
Purchaser, selling Holder or managing underwriter expressly for
inclusion therein; and
(3) customary comfort letters, dated as of the date of
Consummation of the Exchange Offer or the date of effectiveness
of the Shelf Registration Statement, as the case may be, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters by underwriters in connection with Underwritten
Offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 7(e) and (f) of the
Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
pursuant to this clause (xi), if any.
The above shall be done at effectiveness of such Registration
Statement (and if appropriate, each post-effective amendment thereto) and
each closing under such underwriting or similar agreement, as and to the
extent required thereunder, and, if at any time the representations and
warranties of the Company contemplated in clause (A)(1) above cease to be
true and correct in any material respect, the Company shall so advise
-17-
the Initial Purchasers and the managing underwriter(s), if any, each
selling Holder and each Restricted Broker-Dealer promptly and, if requested
by such Persons, shall confirm such advice in writing. In the case of any
Underwritten Offering, the Company shall provide written notice to the
Holders of all Transfer Restricted Securities of such Underwritten Offering
at least 30 days prior to the filing of a prospectus supplement for such
Underwritten Offering. Such notice shall (x) offer each such Holder the
right to participate in such Underwritten Offering, (y) specify a date,
which shall be no earlier than ten Business Days following the date of such
notice, by which such Holder must inform the Company of its intent to
participate in such Underwritten Offering and (z) include the instructions
such Holder must follow in order to participate in such Underwritten
Offering;
(xiii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the managing underwriter(s), if any,
and its counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions in the United States as the selling Holders or managing
underwriter(s), if any, may request and use reasonable best efforts to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement; provided,
however, that the Company shall not be required to register or qualify as a
foreign entity where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement,
in any jurisdiction where it is not now so subject;
(xiv) shall issue, upon the request of any Holder of Senior Notes
covered by any Shelf Registration Statement contemplated by this Agreement,
New Senior Notes, having an aggregate principal amount equal to the
aggregate principal amount of the Senior Notes surrendered to the Company
by such Holder in exchange therefor or being sold by such Holder; such New
Senior Notes to be registered in the name of such Holder or in the name of
the purchaser(s) of such Notes, as the case may be; in return, the Senior
Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xv) cooperate with the selling Holders and the managing
underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and enable such Transfer Restricted
Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business
Days prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xvi) use its reasonable best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xiii)
above;
-18-
(xvii) subject to Section 6(c)(i), if any fact or event contemplated
by clause 6(c)(iii)(D) above shall exist or have occurred, promptly prepare
a supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading;
(xviii) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement covering
such Transfer Restricted Securities and provide the Trustee under the
Indenture with printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with The Depository Trust Company;
(xix) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is
required to be retained in accordance with the rules and regulations of the
NASD), and use its reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;
(xx) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or reasonable best efforts Underwritten Offering or
(B) if not sold to underwriters in such an offering, beginning with the
first month of the Company's first fiscal quarter commencing after the
effective date of the Registration Statement;
(xxi) cause the Indenture to be qualified under the TIA not later than
the effective date of the first Registration Statement required by this
Agreement, and, in connection therewith, cooperate with the Trustee and the
Holders of Notes to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the
TIA; and execute and use its reasonable best efforts to cause the Trustee
to execute, all documents that may be required to effect such changes and
all other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner;
(xxii) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange, if any, on
which similar securities issued by the Company are then listed if requested
by the Holders of a majority in aggregate principal amount of Senior Notes
or the managing underwriter(s), if any; and
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(xxiii) promptly provide or make available to the Holders of the
Notes, all financial information and reports at the time and in the manner
provided for in Section 4.03 of the Indenture.
(d) Restrictions on Holders. (i) Each Holder agrees by acquisition of
a Transfer Restricted Security that, upon receipt of the notice from the Company
of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof (a "Suspension Notice"), such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvii) hereof, or
until it is advised in writing (the "Advice") by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so
directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section 6(c)(i)
or Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvii) hereof
or shall have received the Advice.
(ii) The Company may require a Holder of Transfer Restricted
Securities to be included in a Registration Statement to furnish to the Company
such information as required by law to be disclosed by such Holder in such
Registration Statement, and the Company may exclude from such Registration
Statement the Transfer Restricted Securities of any Holder who unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
SECTION 7. REGISTRATION EXPENSES
Any and all expenses incident to performance of or compliance by the
Company with this Agreement, including without limitation: (i) all Commission,
stock exchange or NASD registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state or other securities or blue
sky laws and compliance with the rules of the NASD (including reasonable fees
and disbursements of counsel for any underwriters or Holders in connection with
state or other securities or blue sky qualification of any of the Senior Notes),
(iii) all expenses of any Persons in preparing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements, certificates
representing the New Senior Notes and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating agency fees,
(v) all fees and expenses incurred in connection with the listing, if any, of
any of the New Senior Notes on any securities exchange or exchanges, (vi) all
fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vii) the fees and disbursements of counsel for the
Company and the fees and expenses of the independent public accountants of the
Company, including the expenses of any special audits or "comfort" letters
-20-
required by or incident to such performance and compliance, (viii) the fees and
expenses of a "qualified independent underwriter" as defined by Conduct Rule
2720 of the NASD (if required by the NASD rules) in connection with the offering
of the New Senior Notes and the reasonable fees and expenses of its counsel,
(ix) the reasonable fees and expenses of the Trustee, any registrar, any
depositary and paying agent, including their respective counsel, and any escrow
agent or custodian, (x) the reasonable fees and expenses of the Initial
Purchasers in connection with the Exchange Offer, including the reasonable fees
and expenses of counsel to the Initial Purchasers, (xi) the reasonable fees and
expenses of one counsel to the Holders (which counsel shall be selected by the
Majority Holders and which counsel may also be counsel for the Initial
Purchasers) in connection with the Shelf Registration Statement, and (xii) in
the case of an Underwritten Offering, any reasonable fees and disbursements of
the underwriters customarily required to be paid by issuers or sellers of such
securities, including the reasonable fees and expenses of counsel to the
underwriters, and the fees and expenses of any special experts retained by the
Company in connection with any Registration Statement but excluding (except as
otherwise provided herein) fees of counsel to the underwriters or the Holders
and underwriting discounts and commissions and any transfer taxes, if any,
relating to the sale or disposition of Transfer Restricted Securities by a
Holder.
SECTION 8. INDEMNIFICATION
(a) The Company shall indemnify and hold harmless each Holder, its
directors, officers and employees and each Person, if any, who controls such
Holder within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
liabilities, judgments and actions, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability,
judgment or action relating to purchases and sales of Notes), to which that
Holder, its directors, officers, employees or controlling Persons may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability, judgment or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in
any Registration Statement, preliminary Prospectus or Prospectus or in any
amendment or supplement thereto or (B) in any Blue Sky application or other
document prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the purpose of qualifying
any or all of the Notes under the securities laws of any state or other
jurisdiction (any such application, document or information being hereinafter
called a "Blue Sky Application") or (ii) the omission or alleged omission to
state in any Registration Statement, preliminary Prospectus or Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse such Holder and each director, officer,
employee or controlling Person promptly upon demand for any legal or other
expenses reasonably incurred by such Holder, director, officer, employee or
controlling Person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability, judgment or action as
such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability, judgment or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Registration Statement, preliminary Prospectus or Prospectus, or in any such
amendment or supplement or in any Blue Sky Application in reliance upon and in
conformity with written information furnished to the
-21-
Company by or on behalf of such Holder specifically for inclusion therein;
provided, further, that the Company shall not be liable to any indemnified
Holder under the indemnity agreement in this subsection (a) with respect to any
preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such indemnified Holder results from the fact that such indemnified
Holder sold Transfer Restricted Securities to a Person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final Prospectus in any case where such
delivery is required by the Securities Act if the Company had previously
furnished copies thereof in sufficient quantities to such indemnified Holder and
the loss, claim, damage or liability of such indemnified Holder results from an
untrue statement or omission of a material fact contained in the preliminary
Prospectus which was (i) identified to such indemnified Holder at or prior to
the earlier of the filing with the Commission or the furnishing to such
indemnified Holder of the corrected Prospectus and (ii) corrected in the final
Prospectus.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Company, the management committee of the Company, the Operator, the
employees, officers and directors of the Operator, the General Partners, the
employees, officers and directors of the General Partners, and each Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act (collectively, the "Company
Indemnitees"), from and against any and all losses, claims, damages,
liabilities, judgments or actions, joint or several, or any action in respect
thereof, to which the Company Indemnitees may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability,
judgment or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary Prospectus or Prospectus or in any amendment or
supplement thereto, or in any Blue Sky Application or (ii) the omission or
alleged omission to state in any Registration Statement, preliminary Prospectus
or Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Holder specifically for inclusion therein
and described in Section 8(e) with respect to the Final Memorandum, and shall
reimburse the Company Indemnitee or controlling Person for any legal or other
expenses reasonably incurred by the Company Indemnitee in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability, judgment or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any Holder
may otherwise have to the Company Indemnitees.
(c) Promptly after receipt by any indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall
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notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party and the payment of all fees and
expenses of such counsel shall be the responsibility of the indemnifying party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation, provided,
however, that the indemnified party shall have the right to employ separate
counsel to represent all indemnified parties who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
indemnified parties against the indemnifying parties under this Section 8 if,
(i) the employment of such counsel shall have been specifically authorized in
writing by the indemnifying party, (ii) the indemnifying party shall have failed
to assume the defense of such action or employ counsel reasonably satisfactory
to the indemnified party or (iii) counsel for any of the indemnified parties
shall have reasonably concluded that there may be defenses available to the
indemnified parties that are in addition to or in conflict with those available
to the indemnifying party. In any case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) of all indemnified parties,
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by Xxxxxxx Xxxxx Xxxxxx, in the case of the
parties indemnified pursuant to Section 8(a) and by the Company, in the case of
parties indemnified pursuant to Section 8(b). No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage, liability,
judgment or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage, liability, judgment or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Holders, on the other, from
the offering of the Notes or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, on the one hand, and the Holders, on the
other, with respect to the statements or
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omissions which resulted in such loss, claim, damage, liability, judgment or
action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Holders, on the other, with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Notes purchased under the Purchase Agreement (before deducting expenses)
received by the Company as set forth in the table on the cover page of the Final
Memorandum, on the one hand, and the total net proceeds received by such Holder
upon its resale of Notes less the amount paid by such Holder for such Notes, on
the other hand, bear to the total sum of such amounts. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or such Holder, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Holders agree that it
would not be just and equitable if contributions pursuant to this Section 8 were
to be determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage, liability, judgment or action in respect thereof, referred
to above in this Section 8 shall be deemed to include, for purposes of this
Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(d), no Holder, and
none of its directors, officers, employees or controlling Persons, shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total net proceeds received by such Holder upon its resale of Notes
exceeds the sum of the amount paid by such Holder for such Notes and the amount
of any damages which such Holder has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute as provided in this Section 8(d) are several in
proportion to the respective principal amount of Notes held by each of the
Holders hereunder and not joint.
(e) The Holders severally confirm, and the Company acknowledges, that
the information contained in the first sentence of the second to last paragraph
on the cover page of the Final Memorandum, and the table contained below the
first paragraph and the information contained in the third and ninth paragraphs
under the caption "Plan of Distribution" in the Final Memorandum are correct
and, with respect to any Shelf Registration Statement, the information included
therein, based upon information furnished by such Holder pursuant to Section
4(b), constitute the only information furnished in writing to the Company by or
on behalf of the Holders specifically for inclusion in the Final Memorandum.
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SECTION 9. RULE 144 AND RULE 144A
For so long as the Company is subject to the reporting requirements of
Section 13 or 15 of the Exchange Act, the Company covenants that it will file
the reports required to be filed by it under Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the Commission thereunder
in order to permit resales of Transfer Restricted Securities under Rule 144
or 144A under the Securities Act, that if it ceases to be so required to file
such reports, it will upon the request of any Holder of Transfer Restricted
Securities (i) make publicly available or cause to be made publicly available
such information as is necessary to permit sales pursuant to Rule 144 under the
Securities Act, (ii) deliver or cause to be delivered such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the Securities Act and it will take such further action as any Holder of
Transfer Restricted Securities may reasonably request, and (iii) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Transfer
Restricted Securities without registration under the Securities Act within the
limitation of the exemptions provided by (x) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, (y) Rule 144A under the
Securities Act, as such Rule may be amended from time to time, or (z) any
similar rules or regulations hereafter adopted by the Commission. Upon the
written request of any Holder of Transfer Restricted Securities, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATION
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or investment
bankers and manager or managers that will administer such offering will be
selected by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities included in such offering; provided, that such
investment bankers and managers must be reasonably satisfactory to the Company.
Such investment bankers and managers are referred to herein as the "managing
underwriters."
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture, the Purchase Agreement or granted
by law, including recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages (including the Liquidated Damages contemplated hereby) would
not be adequate compensation for any loss incurred by reason of a
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breach by them of the provisions of this Agreement and hereby agree to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company is not currently
bound by any agreement granting registration rights with respect to its
securities that conflicts with the registration rights set forth herein.
(c) Adjustments Affecting the Notes. The Company will not take any
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has obtained the
written consent of (i) in the case of Section 5 hereof and this Section 12(d),
the Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, Holders of a majority of the then
outstanding principal amount of Transfer Restricted Securities. Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the then
outstanding principal amount of Transfer Restricted Securities being tendered or
registered.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture;
With a copy to:
Xxxxxxx Xxxxx Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
(ii) if to the Initial Purchasers, to the Initial Purchasers' address
specified in Section 12 of the Purchase Agreement.
(iii) if to the Operator:
Northern Plains Natural Gas Company
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Attention: Director of Finance
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All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt acknowledged, if telecopied; and on the next
Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms hereof
or of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Transfer Restricted Securities in any manner, whether by operation
of law or otherwise, such Transfer Restricted Securities shall be held subject
to all of the terms of this Agreement, and by owning and holding such Transfer
Restricted Securities such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable by a court of competent jurisdiction, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
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(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(l) No Personal Liability. None of the members of the Company's
management committee, the General Partners, the Operator or the General
Partners' or Operator's directors, officers, employees, partners, incorporators
or stockholders, if any, shall have any liability for any of the Company's
obligations under the notes or the indenture or hereunder or for any claim based
on, in respect of, or by reason of, such obligations or their creation.
[Signature Page(s) Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NORTHERN BORDER PIPELINE COMPANY
By: NORTHERN PLAINS NATURAL GAS
COMPANY, Operator
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Finance and
Treasurer
XXXXXXX XXXXX XXXXXX, INC.
BANC ONE CAPITAL MARKETS, INC.
BMO XXXXXXX XXXXX CORP.
SUNTRUST XXXXXXXX
BY: XXXXXXX XXXXX XXXXXX, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
-----------------------------
Title: Director
----------------------------
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