EXHIBIT 4.4
Execution Copy
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of March 21, 2001 by and among Northern Border Partners,
L.P., a Delaware limited partnership (the "Partnership"), Northern Border
Intermediate Limited Partnership, a Delaware limited partnership, and Banc of
America Securities LLC ("BOA"), SunTrust Equitable Securities Corporation, Banc
One Capital Markets, Inc. and BMO Xxxxxxx Xxxxx Corp. (the "Initial
Purchasers"), who have agreed to purchase the Partnership's 7.10% Senior Notes
due 2011 (the "Senior Notes") pursuant to and subject to the terms and
conditions of a certain Purchase Agreement, dated March 14, 2001 (the "Purchase
Agreement") pursuant to which the Partnership issued and sold an aggregate of
$225,000,000 of the Senior Notes (the "Senior Notes"). In order to induce the
Initial Purchasers to purchase the Senior Notes, the Partnership has agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligation of the Initial
Purchasers to purchase the Senior Notes pursuant to the Purchase 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, "Affiliate"
shall mean 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 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 "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing. Notwithstanding the foregoing, with
respect to the Partnership "Affiliate" shall mean Northern Border Pipeline
Company, Northern Border Intermediate Limited Partnership, Northern Plains
Natural Gas Company, Pan Border Gas Company and Northwest Border Pipeline
Company.
Authorized Officer: Any of the Chief Executive Officer, Chief
Financial and Accounting Officer or any vice president of the Partnership,
acting singly.
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
Partnership 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: March 21, 2001.
Commission: The Securities and Exchange Commission.
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 Partnership 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.
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.
Definitive Notes: As defined in the Indenture.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
Exchange Offer: The registration by the Partnership under the
Securities Act of the New Senior Notes pursuant to an Exchange Offer
Registration Statement pursuant to which the Partnership 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.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
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
-2-
under the Securities Act and (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.
General Partners: Northern Plains Natural Gas Company, a
Delaware corporation, Pan Border Gas Company, a Delaware corporation, and
Northwest Border Pipeline Company, a Delaware corporation.
Global Note Holder: A "Holder" as defined in the Indenture.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of March 21, 2001 among the
Partnership 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.
Memorandum: As defined in the Purchase Agreement.
NASD: National Association of Securities Dealers, Inc.
Notes: The Senior Notes and the New Senior Notes.
New Senior Notes: The Partnership's 7.10% Senior Notes due
2011, Series A to be issued pursuant to the Indenture (i) in the Exchange Offer
or (ii) upon the request of any holder of Senior Notes covered by a Shelf
Registration Statement, in exchange for such Senior Notes.
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 or any other entity.
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.
-3-
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
Partnership 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 the 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 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 Partnership are sold to an underwriter
for reoffering to the public.
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.
-4-
(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 Partnership 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 Partnership shall use its reasonable best efforts to
cause the Exchange Offer Registration Statement to be effective continuously for
a period of thirty (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
Partnership 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 Partnership 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 30 Business Days thereafter.
(c) The Partnership 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 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
Partnership or one of its Affiliates) may exchange such Senior Notes pursuant to
the Exchange Offer; however, such
-5-
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 Partnership 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 Partnership 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 Partnership 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 Partnership 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 Partnership or
one of its Affiliates, then the Partnership 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 Partnership receives notice
from the Commission or determines that it is not required to file the
Exchange Offer Registration Statement
-6-
pursuant to clause (i) above, (2) the 60th day after the date on which
the Partnership 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 Partnership 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 at least 18 months
(as extended pursuant to 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.
(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 Partnership in writing, within 15 Business Days after receipt
of a request therefor, such information as the Partnership 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 Partnership all
information required to be disclosed in order to make the information previously
furnished to the Partnership 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 interest shall accrue on the
principal amount of the Senior Notes at a rate of 0.25% 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 interest shall accrue on the principal amount of the Senior Notes at
a rate of 0.25% per annum from the Effectiveness Target Date;
-7-
(iii) the Exchange Offer has not been Consummated within 30 Business Days after
the Effectiveness Target Date with respect to the Exchange Offer Registration
Statement then additional interest shall accrue on the principal amount of the
Senior Notes at a rate of 0.25% per annum from the 31st Business Day after the
Effectiveness Target Date; or (iv) 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 interest shall accrue on the principal amount of the Senior Notes at
a rate of 0.25% per annum from the 31st day following such Registration
Statement ceasing to be effective (each such event referred to in clauses (i)
through (iv), a "Registration Default"). The additional interest rate owing
pursuant to the preceding clauses (i) through (iv) shall be increased by 0.25%
per annum each 90-day period that such Registration Default continues, provided
such additional interest does not exceed the Maximum Rate, as defined below.
All accrued Liquidated Damages (as defined below) shall be
paid to the Global Note Holders or Holders of certificated Notes by the
Partnership on each Interest Payment Date generally in accordance with the
provisions in the Indenture regarding payment of interest. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) 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, the Liquidated Damages
payable with respect to the Transfer Restricted Securities as a result of such
clause (i), (ii), (iii) or (iv) ("Liquidated Damages"), as applicable, shall
cease. Liquidated Damages on the Senior Notes may not exceed, in the aggregate,
1% of the face amount of the Senior Notes per annum (the "Maximum Rate").
All obligations of the Partnership 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.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Partnership 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
-8-
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
Partnership there is a substantial question as to whether the Exchange
Offer is permitted by applicable law or Commission policy, the
Partnership hereby agrees to seek a no-action letter or other favorable
decision from the Commission staff allowing the Partnership to
Consummate an Exchange Offer for such Senior Notes. The Partnership
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
Partnership 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 Partnership 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
Partnership, prior to the Consummation thereof, a written
representation to the Partnership (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
Partnership, (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 Partnership'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 Xxxxxxx & 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
-9-
Senior Notes obtained by such Holder in exchange for Senior Notes
acquired by such Holder directly from the Partnership or an Affiliate
thereof.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Partnership shall provide a supplemental
letter to the Commission (A) stating that the Partnership 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)
and, if applicable, any no-action letter obtained pursuant to clause
(i) above, (B) including a representation that the Partnership 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 Partnership'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.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Partnership 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 Partnership 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 Partnership shall:
(i) 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 Transfer Restricted Securities
during the period required by this Agreement, the Partnership 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
-10-
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;
(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; 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; 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;
(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 Partnership 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
-11-
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 Partnership 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
Partnership 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 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 Partnership's representatives available for discussion of such
document and other customary due diligence matters, and 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 at
reasonable times for inspection by the selling Holders, any managing
underwriter participating in the disposition pursuant to such
Registration Statement, if any, and any attorney or accountant retained
by such selling Holders or any of the underwriter(s), all relevant
financial and other records, pertinent corporate documents and
properties of the Partnership and cause the officers, directors and
employees of the Partnership to supply all information reasonably
requested by any such underwriter, attorney or accountant in connection
with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its
effectiveness;
(vii) 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, 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
-12-
amendment as soon as practicable after the Partnership is notified of
the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) 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;
(ix) 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);
(x) 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; the
Partnership 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;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties with respect
to the business of the Partnership 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 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 Partnership 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,
-13-
signed on behalf of the Partnership by any Authorized Officer,
confirming, as of the date thereof, the matters set forth in
paragraph (g) of Section 7 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
Partnership, covering the matters set forth in paragraphs (c)
and (d) of Section 7 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 Partnership has participated in conferences with
officers of the Partnership and other representatives of the
Partnership, representatives of the independent public
accountants for the Partnership 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 specifically stated in such opinion), on the basis
of the foregoing, 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); 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 Partnership'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;
-14-
(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 Partnership pursuant to this
clause (xi), if any.
The above shall be done at 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 Partnership contemplated in clause (A)(1) above cease to be true
and correct in any material respect, the Partnership shall so advise
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;
(xii) 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 do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the applicable Registration
Statement; provided, however, that the Partnership 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;
(xiii) 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 Partnership 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 Partnership for cancellation;
(xiv) 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);
-15-
(xv) 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 (xii) above;
(xvi) subject to Section 6(c)(i), if any fact or event
contemplated by clause 6(c)(iii)(D) above shall exist or have occurred,
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;
(xvii) 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;
(xviii) 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;
(xix) 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 Partnership's
first fiscal quarter commencing after the effective date of the
Registration Statement;
(xx) 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
-16-
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;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on
which similar securities issued by the Partnership 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
(xxii) 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 Partnership of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof, 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)(xvi) hereof, or until it is
advised in writing (the "Advice") by the Partnership 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 Partnership, each Holder will deliver to the Partnership (at the
Partnership'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 Partnership 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)(xvi) hereof
or shall have received the Advice.
(ii) The Partnership may require a Holder of Transfer
Restricted Securities to be included in a Registration Statement to furnish to
the Partnership such information as required by law to be disclosed by such
Holder in such Registration Statement, and the Partnership 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
All expenses incident to the Partnership's performance of or
compliance with this Agreement will be borne by the Partnership, regardless of
whether a Registration Statement becomes effective, including, without
limitation: (i) all registration and filing fees and expenses (including filings
made by any Initial Purchaser or Holder with the NASD (and, if applicable, the
fees and
-17-
expenses of any "qualified independent underwriter") and its counsel may be
required by the rules and regulations of the NASD); (ii) all fees expenses of
compliance with federal securities and state Blue Sky or laws; (iii) all
expenses of printing (including printing certificates the New Senior Notes to
be issued in the Exchange Offer and printing of (iv) all fees and disbursements
of counsel for the Partnership; (v) all messenger and delivery services and
telephone expenses of the Partnership; and (vi) all fees and disbursements of
independent certified public accountants of the Partnership (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Partnership will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of any of the
Partnership's officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person, including
special experts, retained by the Partnership.
SECTION 8. INDEMNIFICATION
(a) The Partnership 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 Partnership (or based
upon any written information furnished by the Partnership) 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 Partnership
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 Partnership by or on
behalf of such Holder specifically for inclusion therein.
-18-
(b) Each Holder, severally and not jointly, shall indemnify
and hold harmless the Partnership, the Partnership Policy Committee of the
Partnership, the Audit Committee of the Partnership, the employees and officers
of the Partnership, the General Partners, the employees, officers and directors
of the General Partners, and each Person, if any, who controls the Partnership
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act (collectively, the "Partnership 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 Partnership 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 Partnership by or on behalf of such Holder
specifically for inclusion therein and described in Section 8(e), and shall
reimburse the Partnership Indemnitee or controlling Person for any legal or
other expenses reasonably incurred by the Partnership 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 Partnership 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 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
-19-
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 BOA, in the case of the parties indemnified pursuant
to Section 8(a) and by the Partnership, 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 Partnership, 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 Partnership, on the one hand, and the
Holders, on the other, with respect to the statements or 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 Partnership, 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
Partnership as set forth in the table on the cover page of the 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
-20-
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Partnership 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
Partnership 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 Partnership
acknowledges, that the statements with respect to the offering of the Notes set
forth in the bottom paragraph on the cover page of, and the table contained in
the first paragraph and the disclosure in the second, fifth, sixth and seventh
paragraphs and the last sentence of the fourth paragraph under the caption "Plan
of Distribution" in the Memorandum are correct and constitute the only
information furnished in writing to the Partnership by or on behalf of the
Holders specifically for inclusion in the Memorandum.
SECTION 9. RULE 144A
The Partnership hereby agrees with each Holder, for so long as
any Transfer Restricted Securities remain outstanding and during any period in
which the Partnership is not subject to Section 13 or 15(d) of the Exchange Act,
to make available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A.
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
-21-
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
Partnership. 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
Partnership agrees that monetary damages (including the Liquidated Damages
contemplated hereby) would not be adequate compensation for any loss incurred by
reason of a 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 Partnership 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
Partnership 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 Partnership 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 Partnership
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
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
-22-
be given by the Holders of a majority of the 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; and
With a copy to:
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Syndicate Operations
Telecopy No.: (000) 000-0000
(ii) if to the Initial Purchasers, to the Initial Purchasers'
address specified in Section 12 of the Purchase Agreement.
(iii) if to the Partnership:
Northern Border Partners, L.P.
c/o Northern Plains Natural Gas Company
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Attention: Director of Finance
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
-23-
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 INTERNAL 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.
(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 Partnership 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
Partnership Policy Committee or the Partnership Audit Committee, the General
Partners, or the Partnership's or the General Partners' directors, officers,
employees, stockholders or unit holders, if any, shall have any liability for
any of the Partnership'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.
-24-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
NORTHERN BORDER PARTNERS, L.P.
By:
-----------------------------------------
Name:
Title:
NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP
By:
-----------------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
SUNTRUST EQUITABLE SECURITIES CORPORATION
BANC ONE CAPITAL MARKETS, INC.
BMO XXXXXXX XXXXX CORP.
By: BANC OF AMERICA SECURITIES LLC
By:
-------------------------------------------
Name:
Title:
