EXHIBIT 10(d)
U.S. $175,000,000
CREDIT AGREEMENT,
dated as of November 6, 1997
among
NORTHERN BORDER PARTNERS, L.P.
as the Borrower,
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
and
CANADIAN IMPERIAL BANK OF COMMERCE
acting through certain U.S. branches or agencies,
as the Agent for the Lenders.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of November 6, 1997, among
NORTHERN BORDER PARTNERS, L.P., a Delaware limited partnership
(the "Borrower"), the various financial institutions as are or
may become parties hereto (collectively, the "Lenders"), and
CANADIAN IMPERIAL BANK OF COMMERCE, acting through certain of its
U.S. branches or agencies ("CIBC"), as agent (the "Agent") for
the Lenders,
W I T N E S S E T H:
WHEREAS, the Borrower owns, through its Subsidiary, the
Intermediate Partnership (as hereinafter defined), a 70% general
partner interest in Northern Border Pipeline Company, a Texas
general partnership ("NBPC"); and
WHEREAS, NBPC intends to extend and expand its pipeline and
related facilities (such extension and expansion, the "Expansion
and Extension"), which Expansion and Extension will be, in part,
funded by contributions from the general partners of NBPC, and
WHEREAS, the Borrower desires to obtain Commitments from the
Lenders pursuant to which Loans, in a maximum aggregate principal
amount at any one time outstanding not to exceed $175,000,000,
will be made to the Borrower from time to time prior to the
applicable Commitment Termination Date for such Commitments; and
WHEREAS, the Lenders are willing, on the terms and subject
to the conditions hereinafter set forth (including Article V), to
extend such Commitments and make such Loans to the Borrower; and
WHEREAS, the proceeds of such Loans will be used
(a) to make contributions to the Intermediate
Partnership (including reimbursement of prior contributions)
to fund such Intermediate Partnership's pro-rata
contribution requirement to NBPC for the construction of the
Expansion and Extension; and
(b) subject to the conditions set forth below, for
general business purposes of the Borrower in an amount not to
exceed $40,000,000 at any time outstanding;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. Defined Terms. The following terms (whether
or not underscored) when used in this Agreement, including its
preamble and recitals, shall, except where the context otherwise
requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof):
"Affiliate" of any Person means any other Person which,
directly or indirectly, controls, is controlled by or is under
common control with such Person (excluding any trustee under, or
any committee with responsibility for administering, any Plan).
A Person shall be deemed to be "controlled by" any other Person
if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors
or managing general partners; or (b) to direct or cause the
direction of the management and policies of such Person whether
by contract or otherwise.
"Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor
Agent pursuant to Section 9.4.
"Agreement" means, on any date, this Credit Agreement as
originally in effect on the Effective Date and as thereafter from
time to time amended, supplemented, amended and restated, or
otherwise modified and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to
all Base Rate Loans, a fluctuating rate of interest per annum
equal to the higher of (a) the rate of interest most recently
announced by CIBC at its Domestic Office as its base rate for
Dollar loans; and (b) the Federal Funds Rate most recently
determined by the Agent plus 0.50%. The Alternate Base Rate is
not necessarily intended to be the lowest rate of interest
determined by CIBC in connection with extensions of credit.
Changes in the rate of interest on that portion of any Loans
maintained as Base Rate Loans will take effect simultaneously
with each change in the Alternate Base Rate. The Agent will give
notice promptly to the Borrower and the Lenders of changes in the
Alternate Base Rate.
"Applicable Margin" means with respect to any Loan
maintained as a LIBO Rate Loan (a) on any date prior to the
second anniversary of the Effective Date, a rate per annum equal
to .475% and (b) on the second anniversary of the Effective Date
and on any date thereafter, a rate equal to .625% per annum.
"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to the Borrower, those
of its officers whose signatures and incumbency shall have been
certified to the Agent and the Lenders pursuant to Section 5.1.1.
"Authorized Representative" means any Authorized Officer,
the Northern Plains Natural Gas Company's Director, Finance or
the Northern Plains Natural Gas Company's Manager, Debt &
Investment.
"Base Rate Loan" means a Loan bearing interest at a
fluctuating rate determined by reference to the Alternate Base
Rate.
"Borrower" is defined in the preamble.
"Borrowing" means the Loans of the same type and, in the
case of LIBO Rate Loans, having the same Interest Period made by
all Lenders on the same Business Day and pursuant to the same
Borrowing Request in accordance with Section 2.1.
"Borrowing Request" means a loan request and certificate
duly executed by an Authorized Representative of the Borrower,
substantially in the form of Exhibit B hereto.
"Business Day" means (a) any day which is neither a Saturday
or Sunday nor a legal holiday on which banks are authorized or
required to be closed in New York, New York; and (b) relative to
the making, continuing, prepaying or repaying of, or rate
selection for, any LIBO Rate Loans, any day other than a Saturday
or Sunday on which commercial banks are open for business in New
York, New York and on which dealings in Dollars are carried on in
the London interbank eurodollar market.
"Capitalization" means, with respect to the Borrower, the
sum of its Indebtedness plus partner equity, determined on a
consolidated basis for the Borrower and the Intermediate
Partnership in accordance with GAAP, except as to consolidation
requirements for Subsidiaries of the Borrower and the
Intermediate Partnership.
"Capitalized Lease Liabilities" means all monetary
obligations of the Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP,
would be classified as capitalized leases, and, for purposes of
this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be
the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty.
"Cash Equivalent Investment" means, at any time: (a) any
evidence of Indebtedness issued or fully guaranteed by the United
States Government maturing no later than one year from such time;
(b) commercial paper rated A-l or better by Standard & Poor's
Corporation or P-l or better by ▇▇▇▇▇'▇ Investors Service, Inc.;
(c) any certificate of deposit maturing no later than one year
after such time issued by, or any time deposit with either (i) a
commercial banking institution that has a combined capital and
surplus and undivided profits of not less than $500,000,000, or
(ii) any Lender; (d) bonds, debentures, notes or other evidences
of Indebtedness issued by any of the following agencies or such
other like governmental or governmental-sponsored agencies which
may be hereafter created: Bank for Cooperatives, Federal
Intermediate Credit Banks, Federal Financing Banks, Federal Home
Loan Bank System, Export-Import Bank of the United States,
Farmers Home Administration, Small Business Administration,
InterAmerican Development Bank, International Bank for
Reconstruction and Development, Federal Land Banks, the Federal
National Mortgage Association, and the Government National
Mortgage Association, in each case if purchased by the Borrower
from a financial institution referred to in clause (c) above;
provided that such financial institution agrees to repurchase
such securities within 180 days from the purchase by the
Borrower; (e) any repurchase agreement with a term extending no
later than 180 days from such time entered into with any Lender
(or other commercial banking institution which is insured by the
Federal Deposit Insurance Corporation and has a combined capital
and unimpaired surplus of at least $500,000,000, and with members
of the Association of Primary Dealers in United States Government
Securities, the underlying securities of which are of the type
described in clause (a) or (d) above, and each of which is
secured at all times by obligations of the same type that have
fair market value, including accrued interest, at least equal to
the amount of such repurchase agreement, including accrued
interest; (f) obligations of any state within the United States,
any nonprofit corporation or any instrumentality of the
foregoing, maturing no later than one year from such time,
provided that at the time of their purchase, such obligations are
rated in one of the two highest letter rating categories (e.g. in
the case of Standard & Poors, either its AAA or AA category) by a
nationally recognized securities credit rating agency; and
(g) obligations maturing no later than one year from such time,
issued by political subdivisions or municipalities of any state
within the United States, any nonprofit corporation or any
instrumentality of the foregoing, that are rated in one of the
two highest letter rating categories (e.g. in the case of
Standard & Poors, either its AAA or AA category) by a nationally
recognized securities credit rating agency.
"Change" is defined in Section 4.5.
"Change in Control" means the failure of Subsidiaries of
Enron Corp., Duke Energy Corp. and/or The ▇▇▇▇▇▇▇▇ Companies to
own, free and clear of all Liens, general partnership interests
in the Borrower and the Intermediate Partnership such that the
aggregate voting rights of such Persons, together with their
Subsidiaries, is at least 50% of the outstanding voting rights of
all general partners of the Borrower or the Intermediate
Partnership, as the case may be.
"CIBC" is defined in the preamble.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means, relative to any Lender, such Lender's
obligation to make Loans pursuant to Section 2.1.1.
"Commitment Amount" means, on any date, $175,000,000, as
such amount may be reduced from time to time pursuant to Section
2.2.
"Commitment Letter" is defined in Section 3.3.3.
"Commitment Termination Date" means the earliest of
(a) the Stated Maturity Date;
(b) the date on which the Commitment Amount is
terminated in full or reduced to zero pursuant to Section
2.2; and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c),
the Commitments shall terminate automatically and without any
further action.
"Commitment Termination Event" means (a) the occurrence of
any Default described in clauses (a) through (d) of Section 8.1.9
with respect to the Borrower, NBPC or any Material Subsidiary;
(b) the occurrence and continuance of any other Event of Default
and either (i) the declaration of the Loans to be due and payable
pursuant to Section 8.3, or (ii) in the absence of such
declaration, the giving of notice by the Agent, acting at the
direction of the Required Lenders, to the Borrower that the
Commitments have been terminated; or (c) the occurrence of the
Facility B Termination Date, as such term is defined in the NBPC
Credit Agreement, unless on or before such date the Expansion and
Extension shall have been completed such that NBPC has received
written authorization from the FERC, or its representative, to
commence service on the Expansion and Extension and NBPC shall
have complied in all material respects with the terms of the FERC
Certificate of Public Convenience and Necessity dated August 1,
1997 issued to NBPC, and the Agent shall have received a
certificate from an Authorized Officer of the Borrower certifying
that NBPC has received such written authorization.
"Common Unit" means units representing limited partnership
interests in the Borrower offered for sale to the public.
"Common Units" does not include the Subordinated Units until such
units are converted to Common Units by operation of the
Partnership Agreement.
"Continuation/Conversion Notice" means a notice of
continuation or conversion and certificate duly executed by an
Authorized Representative of the Borrower, substantially in the
form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group
of corporations and all members of a controlled group of trades
or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single
employer under Section 414(b) or 414(c) of the Code or Section
4001 of ERISA.
"Debt" means the Indebtedness of the Borrower and the
Intermediate Partnership, determined on a consolidated basis
without regard to any other subsidiaries of either which would
otherwise be consolidated under the requirements of GAAP.
"Debt to Capitalization Ratio" means the ratio, expressed as
a percentage, of (a) Debt to (b) Capitalization.
"Default" means any Event of Default or any condition,
occurrence or event which, after notice or lapse of time or both,
would constitute an Event of Default.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented or
otherwise modified from time to time by the Borrower with the
written consent of the Agent and the Required Lenders.
"Dollar" and the sign "$" mean lawful money of the United
States.
"Domestic Office" means, relative to any Lender, the office
of such Lender designated below its signature hereto or
designated in the Lender Assignment Agreement or such other
office of a Lender (or any successor or assign of such Lender)
within the United States as may be designated from time to time
by notice from such Lender, as the case may be, to each other
Person party hereto.
"Effective Date" means the date this Agreement becomes
effective pursuant to Section 10.8.
"Environmental Laws" means all applicable federal, state and
local statutes, laws, regulations, ordinances, rules, or other
governmental restrictions relating to the regulation or
protection of human health, safety or the environment or to
emissions, discharges, releases or threatened releases of
hazardous materials into the environment, including, without
limitation, ambient air, soil, surface water, groundwater,
wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of hazardous materials. Without
limiting the foregoing, Environmental Laws shall include, but not
be limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 et seq., as
amended, the Solid Waste Disposal Act, 42 U.S.C. 6901 et seq.,
as amended, the Federal Water Pollution Control Act, 33 U.S.C.
1251 et seq., as amended, the Clean Air Act, 42 U.S.C. 7401 et
seq., as amended, the Toxic Substances Control Act, 15 U.S.C.
2601 et seq., the Emergency Planning and Community ▇▇▇▇▇-▇▇-▇▇▇▇-
▇▇▇, ▇▇ ▇.▇.▇. ▇▇▇▇▇ et seq., the Natural Gas Pipeline Safety
Act, 49 App. U.S.C. 1671 et seq., the Liquid Pipeline Safety
Act, 40 U.S.C. 1811, 2001 et seq., the Occupational Safety and
Health Act, 29 U.S.C. 651 et seq., the Hazardous Materials
Transportation Act, 49 U.S. 1801 et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 690, et seq.,
any analogous state and local laws, and any rules or regulations
promulgated thereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA also
refer to any successor sections.
"ERISA Affiliate" means each Person (as defined in
Section 3(9) of ERISA) which together with the Borrower would be
deemed to be a member of the same "controlled group" within the
meaning of Section 414(b) and (c) of the Code.
"Event of Default" is defined in Section 8.1.
"Expansion and Extension" is defined in the second recital.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York; or (b) if such rate is
not so published for any day which is a Business Day, the average
of the quotations for such day on such transactions received by
CIBC from three federal funds brokers of recognized standing
selected by it.
"FERC" means the Federal Energy Regulatory Commission and
any successor agency.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive
calendar months ending on December 31st; references to a Fiscal
Year with a number corresponding to any calendar year (e.g., the
"1997 Fiscal Year") refer to the Fiscal Year ending on the
December 31st occurring during such calendar year.
"F.R.S. Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"GAAP" is defined in Section 1.4.
"General Partner" means any of Northern Plains Natural Gas
Company, Pan Border Gas Company and Northwest Border Pipeline
Company and their successors and assigns in such capacity.
"Guaranteed Liability" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment,
to supply funds to, or otherwise to invest in, a debtor, or
otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's
obligation under any Guaranteed Liability shall (subject to any
limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"Guaranty" means the Guaranty executed and delivered
pursuant to Section 5.1.3, substantially in the form of Exhibit F
hereto, as amended, supplemented, restated or otherwise modified
from time to time.
"Guaranty Event of Default" has the meaning provided in the
Guaranty;
"Hazardous Material" means (a) any "hazardous substance", as
defined by the Comprehensive Environmental Response Compensation
and Liability Act of 1980 (as amended); (b) any "hazardous
waste", as defined by the Resource Conservation and Recovery Act,
as amended; or (c) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material waste or substance within
the meaning of any other applicable Environmental Law, all as
amended or hereafter amended.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in this Agreement or any other Loan Document refer to
this Agreement or such other Loan Document, as the case may be,
as a whole and not to any particular Section, paragraph or
provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion
or certification of any independent public accountant as to any
consolidated financial statement of the Borrower and its
Subsidiaries, any qualification or exception to such opinion or
certification (a) which is of a "going concern" or similar
nature; (b) which relates to the limited scope of examination of
matters relevant to such financial statement; or (c) which
relates to the treatment or classification of any item in such
financial statement and which, as a condition to its removal,
would require an adjustment to such item the effect of which
would be to cause the Borrower to be in default of any of its
obligations under Section 7.2.3.
"including" means including without limiting the generality
of any description preceding such term.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments; (b) obligations of such Person as
lessee of any real or personal property (or any interest therein)
which have not or should not be, in accordance with GAAP,
recorded as Capitalized Lease Liabilities, other than leases of
property and equipment for annual rentals not in excess of
$3,000,000 in the aggregate in any year; (c) all obligations of
such Person as lessee under leases which have been or should be,
in accordance with GAAP (except as to consolidation requirements
for Subsidiaries of the Borrower and the Intermediate
Partnership), recorded as Capitalized Lease Liabilities;
(d) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, other than accounts payable
arising in the ordinary course of such Person's business payable
on terms customary in the trade, and indebtedness (excluding
prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse; and (e) all Guaranteed
Liabilities of such Person in respect of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any
Person shall include the Indebtedness of any partnership or joint
venture in which such Person is liable for such Indebtedness as a
general partner or a joint venturer provided that for purposes of
this Agreement, Indebtedness of the Intermediate Partnership
shall not include the Indebtedness of NBPC unless such
Indebtedness is guaranteed by the Intermediate Partnership.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Interest Period" means, relative to any LIBO Rate Loans,
the period beginning on (and including) the date on which such
LIBO Rate Loan is made or continued as, or converted into, a LIBO
Rate Loan pursuant to Section 2.3 or 2.4 and shall end on (but
exclude) the day which numerically corresponds to such date one,
two, three, six or, if available from all Lenders, twelve months
thereafter (or, if such month has no numerically corresponding
day, on the last Business Day of such month), in either case as
the Borrower may select in its relevant notice pursuant to
Section 2.3 or 2.4; provided, however, that
(a) the Borrower shall not be permitted to select
Interest Periods to be in effect at any one time which have
expiration dates occurring on more than five different
dates;
(b) Interest Periods commencing on the same date for
Loans comprising part of the same Borrowing shall be of the
same duration;
(c) if such Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall
end on the next following Business Day (unless such next
following Business Day is the first Business Day of a
calendar month, in which case such Interest Period shall end
on the Business Day next preceding such numerically
corresponding day); and
(d) no Interest Period may end later than the date set
forth in clause (a) of the definition of "Commitment
Termination Date".
"Intermediate Partnership" means Northern Border
Intermediate Limited Partnership, a limited partnership formed
pursuant to the laws of Delaware.
"Intermediate Partnership Agreement" means that certain
Amended and Restated Agreement of Limited Partnership of Northern
Border Intermediate Limited Partnership dated as of October 1,
1993 as the same may have been or may hereafter be amended,
supplemented, restated or otherwise modified from time to time.
"Investment" means, relative to any Person, (a) any loan or
advance made by such Person to any other Person (excluding
commission, travel and similar advances to officers and employees
made in the ordinary course of business); (b) any Guaranteed
Liability of such Person; and (c) any ownership or similar
interest held by such Person in any other Person. The amount of
any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and
without adjustment by reason of the financial condition of such
other Person) and shall, if made by the transfer or exchange of
property other than cash, be deemed to have been made in an
original principal or capital amount equal to the fair market
value of such property.
"Lender Assignment Agreement" means a Lender Assignment
Agreement substantially in the form of Exhibit D hereto.
"Lenders" is defined in the preamble.
"Lending Installation" means an office, branch, Subsidiary
or Affiliate of a Lender.
"LIBO Rate" means, as the case may be, (a) relative to any
Interest Period for LIBO Rate Loans, the rate of interest per
annum equal to the average of the offered quotations appearing
on Telerate Page 3750 (or if such Telerate Page shall not be
available, any successor or similar service as may be selected by
the Agent and the Borrower) as of 11:00 a.m., London, England
time (or as soon thereafter as practicable), two Business Days
prior to the beginning of such Interest Period, or (b) if none of
such Telerate Page 3750 nor any successor or similar service is
available, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if
necessary, to the nearest 1/100 of 1%) of the rates per annum at
which Dollar deposits in immediately available funds are offered
to CIBC's LIBOR Office in the interbank eurodollar market as at
or about 11:00 a.m. London, England time two Business Days prior
to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount approximately
equal to the amount of CIBC's LIBO Rate Loan and for a period
approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a fixed
rate of interest determined by reference to the LIBO Rate.
"LIBOR Office" means, relative to any Lender, the office of
such Lender designated as such below its signature hereto or
designated in the Lender Assignment Agreement or such other
office of a Lender as designated from time to time by notice from
such Lender to the Borrower and the Agent, whether or not outside
the United States, which shall be making or maintaining LIBO Rate
Loans of such Lender hereunder.
"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property
to secure payment of a debt or performance of an obligation or
other priority or preferential arrangement of any kind or nature
whatsoever.
"Limited Partnership Units" means Common Units, Subordinated
Units and any other units representing a limited partner's
interest in the Borrower.
"Loan" is defined in Section 2.1.1.
"Loan Document" means this Agreement, the Notes, the
Guaranty and the Commitment Letter.
"Material Adverse Effect" means with respect to the Borrower
or any of its Subsidiaries a material adverse effect on (i) the
business, property, financial conditions or operations of the
Borrower or on the Borrower and such Subsidiaries (taken as a
whole) or (ii) on the ability of the Borrower to perform its
Obligations under any of the Loan Documents.
"Material Subsidiary" means any Subsidiary the assets of
which comprised more than 5% of consolidated assets of the
Borrower and its Subsidiaries at the end of the fiscal year of
the Borrower immediately prior to the date of determination, or
the gross revenue of which for any of the three fiscal years of
the Borrower immediately prior to the date of determination
comprised more than 5% of consolidated gross revenue, all as
determined by reference to the applicable financial statements of
such Subsidiary and the Borrower.
"Monthly Payment Date" means the last day of each calendar
month or, if any such day is not a Business Day, the next
succeeding Business Day.
"NBPC" is defined in the first recital.
"NBPC Credit Agreement" means that certain Credit Agreement
among NBPC, as Borrower, The First National Bank of Chicago, as
Administrative Agent, The First National Bank of Chicago, Royal
Bank of Canada, and Bank of America National Trust and Savings
Association as Syndication Agents and First Chicago Capital
Markets, Inc., Royal Bank of Canada and BancAmerica ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ (formerly known as BancAmerica Securities, Inc.) as
Joint Arrangers, dated as of June 16, 1997, as the same may be
amended, supplemented, restated or otherwise modified from time
to time.
"NBPC Partnership Agreement" means that certain General
Partnership Agreement relating to the formation of NBPC effective
as of March 9, 1978 as heretofore amended, modified and
supplemented and as such agreement may hereafter from time to
time be further amended, modified or supplemented.
"Note" means a promissory note of the Borrower payable to
any Lender, in the form of Exhibit A hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to
such Lender resulting from outstanding Loans, and also means all
other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Obligations" means all obligations (monetary or otherwise)
of the Borrower arising under or in connection with this
Agreement, the Notes and each other Loan Document.
"Operator" means that Person provided for in Section 8 of
the NBPC Partnership Agreement which, at the date of this
Agreement, is Northern Plains Natural Gas Company, a Delaware
corporation.
"Organic Document" means, relative to the Borrower, its
Partnership Agreement and certificate of limited partnership;
relative to the Intermediate Partnership, the Intermediate
Partnership Agreement and its certificate of limited partnership
and relative to NBPC, the NBPC Partnership Agreement.
"Participant" is defined in Section 10.11.
"Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of Northern Border Partners,
L.P., dated as of October 1, 1993 as the same may have been or
may hereafter be amended, supplemented, restated or otherwise
modified from time to time.
"Pension Plan" means a "pension plan", as such term is
defined in section 3(2) of ERISA, which is subject to Title IV of
ERISA (other than a multiemployer plan as defined in section
4001(a)(3) of ERISA), and to which the Borrower or any
corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within
the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage
set forth opposite its signature hereto or set forth in the
Lender Assignment Agreement, as such percentage may be adjusted
from time to time pursuant to Lender Assignment Agreement(s)
executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 10.11.
"Person" means any natural person, corporation, partnership,
firm, association, trust, government, governmental agency or any
other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any multi-employer plan or single-employer plan
as defined in Section 4001 of ERISA which is maintained or
contributed to, or at any time during the five calendar years
preceding the date of this Agreement was maintained or
contributed to, for employees of the Borrower or an ERISA
Affiliate.
"Quarterly Payment Date" means the last day of each March,
June, September, and December or, if any such day is not a
Business Day, the next succeeding Business Day.
"Required Lenders" means, at any time, Lenders holding at
least 51% of the then aggregate outstanding principal amount of
the Notes then held by the Lenders, or, if no such principal
amount is then outstanding, Lenders having at least 51% of the
Commitments; provided, that, for purposes of the definition of
"Subordinated Debt", "Required Lenders" shall mean Lenders
holding at least 60% of such aggregate outstanding principal
amount or, if no such principal amount is then outstanding,
having at least 60% of the Commitments.
"Risk-Based Capital Guidelines" is defined in Section 4.5.
"Stated Maturity Date" means November 6, 2000.
"Subordinated Debt" means all unsecured Indebtedness of the
Borrower for money borrowed which is subordinated, upon terms
satisfactory to the Required Lenders, in right of payment to the
payment in full in cash of all Obligations.
"Subordinated Units" means those units representing limited
partnership interests in the Borrower which are owned by the
General Partners and are subordinated as to payment of
distributions to the Common Units pursuant to the terms of the
Partnership Agreement.
"Subsidiary" means, with respect to any Person, (i) any
corporation of which more than 50% of the outstanding securities
having ordinary voting power (irrespective of whether at the time
capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such
Person, by such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such Person or
(ii) any partnership, association, joint venture, limited
liability company or similar business organization more than 50%
of the ownership interests having ordinary voting power of which
shall at the time be directly or indirectly owned by such Person,
by such Person and one or more Subsidiaries of such Person, or by
one or more Subsidiaries of such Person. For purposes of this
Agreement, the Intermediate Partnership (but not NBPC) is deemed
to be a Subsidiary of the Borrower.
"Taxes" is defined in Section 4.6.
"type" means, relative to any Loan, the portion thereof, if
any, being maintained as a Base Rate Loan, a CD Rate Loan or a
LIBO Rate Loan.
SECTION I.2. Use of Defined Terms. Unless otherwise
defined or the context otherwise requires, terms for which
meanings are provided in this Agreement shall have such meanings
when used in the Disclosure Schedule and in each Note, Borrowing
Request, Continuation/Conversion Notice, Loan Document, notice
and other communication delivered from time to time in connection
with this Agreement or any other Loan Document.
SECTION I.3. Cross-References. Unless otherwise
specified, references in this Agreement and in each other Loan
Document to any Article or Section are references to such Article
or Section of this Agreement or such other Loan Document, as the
case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to
such clause of such Article, Section or definition.
SECTION I.4. Accounting and Financial Determinations.
Unless otherwise specified, all accounting terms used herein or
in any other Loan Document shall be interpreted, all accounting
determinations and computations hereunder or thereunder
(including under Section 7.2.3) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall
be prepared in accordance with, those generally accepted
accounting principles ("GAAP") applied in the preparation of the
financial statements referred to in Section 6.5.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION II.1. Commitments. On the terms and subject to the
conditions of this Agreement (including Article V), each Lender
severally agrees to make Loans pursuant to its Commitment
described in this Section 2.1.
SECTION II.1.1. Loan Commitment. From time to time on
any Business Day occurring prior to the Commitment Termination
Date, each Lender will make Loans (relative to such Lender, its
"Loans") to the Borrower equal to such Lender's Percentage of the
aggregate amount of the Borrowing requested by the Borrower to be
made on such day. On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow, prepay and
reborrow Loans.
SECTION II.1.2. Lenders Not Permitted or Required To
Make Loans. No Lender shall be permitted or required to make any
Loan if, after giving effect thereto, the aggregate outstanding
principal amount of all Loans (a) of all Lenders would exceed
the Commitment Amount, or (b) of such Lender would exceed such
Lender's Percentage of the Commitment Amount.
SECTION II.2. Reduction of Commitment Amount. The
Commitment Amount is subject to reduction from time to time
pursuant to this Section 2.2.
The Borrower may, from time to time on any Business Day
occurring after the time of the initial Borrowing hereunder,
voluntarily reduce the Commitment Amount; provided, however, that
all such reductions shall require at least three Business Days'
prior notice to the Agent and be permanent, and any partial
reduction of any Commitment Amount shall be in a minimum amount
of $10,000,000 and in an integral multiple of $5,000,000.
Upon the incurrence of any Indebtedness as described in
Section 7.2.1(e) the Commitment Amount shall be reduced by an
amount equal to the proceeds of such Indebtedness. Upon the sale
pursuant to Section 7.2.9 of any Common Units in the Borrower
other than the sale of Limited Partnership Units issued to the
General Partners pursuant to Section 7.1.9, the Commitment Amount
shall be reduced by an amount equal to (i) the proceeds of such
sale (net of reasonable sale costs) less (ii) the proceeds of
such sale which were raised for the stated purpose of capital
contributions by the Borrower to NBPC, whether directly or
indirectly through the Intermediate Partnership, or for capital
investments or acquisitions by the Borrower either directly or
indirectly through its Subsidiaries which comply with Section
7.2.7, in each case for purposes other than the Expansion and
Extension less (iii) the proceeds of such sale which were raised
for the stated purpose of making capital contributions to NBPC,
whether directly or indirectly through the Intermediate
Partnership (including reimbursement of prior contributions) to
fund the construction of the Expansion and Extension to the
extent that proceeds from such issuance, together with proceeds
of all prior issuances of Common Units since the Effective Date
for the stated purpose of making such contributions, are not in
excess of $25,000,000 in the aggregate.
SECTION II.3. Borrowing Procedure. By delivering a
Borrowing Request to the Agent on or before 12:00 noon, New York,
New York time, on a Business Day, the Borrower may from time to
time irrevocably request, (i) in the case of a Borrowing of LIBO
Rate Loans, on not less than three nor more than five Business
Days' notice and (ii) in the case of a Borrowing of Base Rate
Loans, on the date for such Borrowing, that a Borrowing be made
in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000, or in the unused amount of the Commitment. On the
terms and subject to the conditions of this Agreement, each
Borrowing shall be comprised of the type of Loans, and shall be
made on the Business Day, specified in such Borrowing Request.
On or before 2:00 p.m. (New York, New York time) on such Business
Day each Lender shall deposit with the Agent same day funds in an
amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the
Agent shall specify from time to time by notice to the Lenders.
To the extent funds are received from the Lenders, the Agent
shall make such funds available to the Borrower by wire transfer
to the accounts the Borrower shall have specified in its
Borrowing Request. No Lender's obligation to make any Loan shall
be affected by any other Lender's failure to make any Loan.
SECTION II.4. Continuation and Conversion Elections. By
delivering a Continuation/Conversion Notice to the Agent on or
before 12:00 noon, New York, New York time, on a Business Day,
the Borrower may from time to time irrevocably elect, on not less
than three nor more than five Business Days' notice that all, or
any portion in an aggregate minimum amount of $5,000,000 and an
integral multiple of $1,000,000, of any Loans be, in the case of
Base Rate Loans, converted into LIBO Rate Loans or, in the case
of LIBO Rate Loans, be converted into a Base Rate Loan or
continued as a LIBO Rate Loan (in the absence of delivery of a
Continuation/ Conversion Notice with respect to any LIBO Rate
Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan
shall, on such last day, automatically convert to a Base Rate
Loan); provided, however, that (i) each such conversion or
continuation shall be pro rated among the applicable outstanding
Loans of all Lenders, and (ii) no portion of the outstanding
principal amount of any Loans may be continued as, or be
converted into, LIBO Rate Loans when any Default has occurred and
is continuing.
SECTION II.5. Funding. Each Lender may, if it so elects,
fulfill its obligation to make, continue or convert LIBO Rate
Loans hereunder by causing one of its foreign branches or
Affiliates (or an international banking facility created by such
Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to
have been made and to be held by such Lender, and the obligation
of the Borrower to repay such LIBO Rate Loan shall nevertheless
be to such Lender for the account of such foreign branch,
Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any
determination to be made for purposes of Sections 4.1, 4.2, 4.3
or 4.4, it shall be conclusively assumed that each Lender elected
to fund all LIBO Rate Loans by purchasing Dollar deposits in its
LIBOR Office's interbank eurodollar market.
SECTION II.6. Notes. Each Lender's Loans under its
Commitment shall be evidenced by a Note payable to the order of
such Lender in a maximum principal amount equal to such Lender's
Percentage of the original applicable Commitment Amount. The
Borrower hereby irrevocably authorizes each Lender to make (or
cause to be made) appropriate notations on the grid attached to
such Lender's Note (or on any continuation of such grid) or in
such Lender's other records as it may maintain, which notations,
if made, shall evidence, inter alia, the date of, the outstanding
principal of, and the interest rate and Interest Period
applicable to, the Loans evidenced thereby. Such notations shall
be conclusive and binding on the Borrower absent manifest error;
provided, however, that the failure of any Lender to make any
such notations shall not limit or otherwise affect any
Obligations of the Borrower.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION III.1. Repayments and Prepayments. The Borrower
shall repay in full the unpaid principal amount of each Loan upon
the Stated Maturity Date therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Loans; provided,
however, that (i) any such prepayment shall be made pro rata
among Loans of the same type and, if applicable, having the
same Interest Period of all Lenders; (ii) any such
prepayment of any LIBO Rate Loan made on any day other than
the last day of the Interest Period for such Loan shall be
subject to the provisions of Section 4.4; (iii) all such
voluntary prepayments of LIBO Rate Loans shall require at
least three but no more than five Business Days' prior
written notice and all such voluntary prepayments of Base
Rate Loans shall require at least one but no more than five
Business Days' prior written notice, in each case delivered
to the Agent; and (iv) all such voluntary partial
prepayments shall be in an aggregate minimum amount of
$5,000,000 and an integral multiple of $1,000,000;
(b) shall, on each date when any reduction in the
Commitment Amount shall become effective, including pursuant
to Section 2.2, make a mandatory prepayment of all Loans
equal to the excess, if any, of the aggregate, outstanding
principal amount of all Loans over the Commitment Amount as
so reduced;
(c) unless on or before such date the Expansion and
Extension shall have been completed such that NBPC has
received written authorization from the FERC, or its
representative, to commence service on the Expansion and
Extension and NBPC shall have complied in all material
respects with the terms of the FERC Certificate of Public
Convenience and Necessity dated August 1, 1997 issued to
NBPC, and the Agent shall have received a certificate from
an Authorized Officer of the Borrower certifying that NBPC
has received such written authorization, shall, upon the
occurrence of the Facility B Termination Date (as such term
is defined in the NBPC Credit Agreement), repay all Loans
outstanding; and
(d) shall, immediately upon any acceleration of the
Stated Maturity Date of any Loans pursuant to Section 8.2 or
Section 8.3, repay all Loans, unless, pursuant to Section
8.3, only a portion of all Loans is so accelerated.
Each prepayment of any Loans made pursuant to this Section shall
be without premium or penalty, except as may be required by
Section 4.4. No voluntary prepayment of principal of any Loans
shall cause a reduction in the Commitment Amount.
SECTION III.2. Interest Provisions. Interest on the
outstanding principal amount of Loans shall accrue and be payable
in accordance with this Section 3.2.
SECTION III.2.1. Rates. Pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice,
the Borrower may elect that Loans comprising a Borrowing accrue
interest at a rate per annum:
(a) on that portion maintained from time to time as a
Base Rate Loan, equal to the Alternate Base Rate from time
to time in effect; and
(b) on that portion maintained as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the
sum of the LIBO Rate for such Interest Period plus the
Applicable Margin.
The LIBO Rate for any Interest Period for LIBO Rate Loans
will be determined by the Agent on the basis of the applicable
rates determined pursuant to clause (a) or (b) in the definition
of "LIBO Rate," as the case may be, two Business Days before the
first day of such Interest Period.
All LIBO Rate Loans shall bear interest from and including
the first day of the applicable Interest Period to (but not
including) the last day of such Interest Period at the interest
rate determined as applicable to such LIBO Rate Loan.
SECTION III.2.2. Post-Maturity Rates. After the date any
principal amount of any Loan is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise), or after
any other monetary Obligation of the Borrower shall have become
due and payable, the Borrower shall pay, but only to the extent
permitted by law, interest (after as well as before judgment) on
such amounts at a rate per annum equal to the Alternate Base Rate
plus a margin of 2%.
SECTION III.2.3. Payment Dates. Interest accrued on each
Loan shall be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole
or in part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the date of the initial
Borrowing hereunder;
(d) with respect to LIBO Rate Loans, the last day of
each applicable Interest Period (and, if such Interest
Period shall exceed three months, on the last day of each
three month period of such Interest Period);
(e) with respect to any Base Rate Loans converted into
LIBO Rate Loans on a day when interest would not otherwise
have been payable pursuant to clause (c), on the date of
such conversion; and
(f) on that portion of any Loans the Stated Maturity
Date of which is accelerated pursuant to Section 8.2 or
Section 8.3, immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising
under this Agreement or any other Loan Document after the date
such amount is due and payable (whether on the Stated Maturity
Date, upon acceleration or otherwise) shall be payable upon
demand.
SECTION III.3. Fees. The Borrower agrees to pay the fees
set forth in this Section 3.3. All such fees shall be non-
refundable.
SECTION III.3.1. Commitment Fee. The Borrower agrees to
pay to the Agent for the account of each Lender, for the period
(including any portion thereof when any of its Commitments are
suspended by reason of the Borrower's inability to satisfy any
condition of Article V) commencing on the Effective Date and
continuing through the final Commitment Termination Date, a
commitment fee at the rate of .15 of 1% per annum on such
Lender's Percentage of the sum of the average daily unused
portion of the Commitment Amount. Such commitment fees shall be
payable by the Borrower in arrears on each Quarterly Payment
Date, commencing with the first such day following the Effective
Date, and on the Commitment Termination Date.
SECTION III.3.2. Upfront Fee. The Borrower agrees to pay
to the Agent for the account of each Lender, an upfront fee in an
amount equal to the amount set forth in a letter to each Lender
from the Agent which amount has been agreed to by the Borrower,
payable on the Effective Date.
SECTION III.3.3. Agent's Fee. To the Agent, for its own
account and for the account of CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. (formerly
known as CIBC Wood Gundy Securities Corp.), an agency fee and a
structuring fee as set forth in that certain letter agreement
dated September 25, 1997 (the "Commitment Letter") between the
Borrower and the Agent.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION IV.1. LIBO Rate Lending Unlawful. If any Lender
determines that the advancement of or maintenance of any of its
LIBO Rate Loans at a suitable Lending Installation would violate
any applicable law, rule, regulation or directive, whether or not
having the force of law, the Agent shall suspend the availability
of LIBO Rate Loans for such Lender and any LIBO Rate Loan for
such Lender shall automatically convert into a Base Rate Loan.
SECTION IV.2. Deposits Unavailable. If the Agent shall
have determined that (a) Dollar deposits in the relevant amount
and for the relevant Interest Period appropriate to match fund
LIBO Rate Loans are not available in the relevant market; or
(b) by reason of circumstances affecting the relevant market,
adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans, then, upon notice from
the Agent to the Borrower and the Lenders, the obligations of all
Lenders under Section 2.3 and Section 2.4 to make or continue any
Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until Dollar deposits in the relevant
amounts and for the relevant Interest Periods are available in
the relevant market and adequate means exist for ascertaining the
applicable interest rate. If after giving effect to amounts
payable under Sections 4.3 and 4.5 an interest rate applicable to
LIBO Rate Loans does not accurately reflect the cost of making a
LIBO Rate Loan, then, if for any reason whatsoever the provisions
of Section 4.3 are inapplicable, the Agent shall suspend the
availability of LIBO Rate Loans made after the date of any such
determination.
SECTION IV.3. Increased LIBO Rate Loan Costs, etc. If any
change in, or introduction of, any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any
interpretation thereof, or compliance of any Lender therewith,
(a) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due from
the Borrower (excluding franchise taxes and taxes imposed on the
overall net income of any Lender or applicable Lending
Installation), or changes the basis of taxation of payments to
any Lender in respect of its LIBO Rate Loans or other amounts due
it hereunder, or (b) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender or any applicable Lending
Installation, or (c) imposes any other condition the result of
which is to increase the cost to any Lender or any applicable
Lending Installation of making, funding or maintaining LIBO Rate
Loans or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with LIBO Rate
Loans, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the
amount of LIBO Rate Loans held or interest received by it, by an
amount deemed material by such Lender, then, within 15 days of
demand by such Lender specifying, in reasonable detail, the
nature of the change or introduction, the Borrower shall pay such
Lender that portion of such increased expense incurred or
reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Loans and its
Commitment. The Borrower shall not be obligated to compensate
any Lender pursuant to this Section 4.3 for any amounts
attributable to a period more than 120 days prior to the giving
of notice by such Lender to the Borrower of its intention to seek
compensation under this Section 4.3 or its request therefor.
SECTION IV.4. Funding Losses. If any payment to any Lender
of a LIBO Rate Loan occurs on a date which is not the last day of
the applicable Interest Period, whether because of acceleration,
prepayment, the replacement of such Lender pursuant to Section
4.8, or otherwise, or a LIBO Rate Loan is not made or converted
on the date specified by the Borrower in a Borrowing Request or
Continuation/Conversion Notice, as the case may be, for any
reason other than default by the relevant Lenders, the Borrower
will indemnify each such Lender, or will cause each such Lender
to be indemnified, for any loss or cost incurred by it resulting
therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain
the LIBO Rate Loan but excluding lost profits. The Borrower
shall not be obligated to compensate any Lender pursuant to this
Section 4.4 for any amounts attributable to a period more than
120 days prior to the giving of notice by such Lender to the
Borrower of its intention to seek compensation under this Section
4.4 or its request therefor.
SECTION IV.5. Increased Capital Costs. If a Lender
determines that the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such
Lender, or any corporation controlling such Lender is increased
as a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary
to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender reasonably
determines is attributable to this Agreement, its Loans, or its
obligation to make Loans hereunder (after taking into account
such Lender's policies as to capital adequacy being applied with
respect to customers similarly situated to Borrower with whom
such Lender has a contractual right to so charge such amounts).
"Change" means (i) any change after the Effective Date in the
Risk-Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive
(whether or not having the force of law) after the Effective Date
which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "Risk-Based Capital
Guidelines" means (i) the risk-based capital guidelines in effect
in the United States on the Effective Date, including transition
rules, and (ii) the corresponding capital regulations promulgated
by regulatory authorities outside the United States implementing
the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition
rules, and any amendments to such regulations adopted prior to
the date of this Agreement. The Borrower shall not be obligated
to compensate any Lender pursuant to this Section 4.5 for any
amounts attributable to a period more than 120 days prior to the
giving of notice by such Lender to the Borrower of its intention
to seek compensation under this Section 4.5 or its request
therefor.
SECTION IV.6. Taxes. All payments by the Borrower of
principal of, and interest on, the Loans and all other amounts
payable hereunder shall be made free and clear of and without
deduction for any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing
authority, but excluding franchise taxes and taxes imposed on or
measured by any Lender's net income or receipts (such non-
excluded items being called "Taxes"). In the event that any
withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant
to any applicable law, rule or regulation, then the Borrower will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted; (b) promptly forward to
the Agent an official receipt or other documentation satisfactory
to the Agent evidencing such payment to such authority; and
(c) pay to the Agent for the account of the Lenders such
additional amount or amounts as is necessary to ensure that the
net amount actually received by each Lender will equal the full
amount such Lender would have received had no such withholding or
deduction been required. Moreover, if any Taxes are directly
asserted against the Agent or any Lender with respect to any
payment received by the Agent or such Lender hereunder, the Agent
or such Lender may pay such Taxes and the Borrower will promptly
pay such additional amounts (including any penalties, interest or
expenses) as is necessary in order that the net amount received
by such person after the payment of such Taxes (including any
Taxes on such additional amount) shall equal the amount such
person would have received had not such Taxes been asserted.
If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for
the account of the respective Lenders, the required receipts or
other required documentary evidence, the Borrower shall indemnify
the Lenders for any incremental Taxes, interest or penalties that
may become payable by any Lender as a result of any such failure.
For purposes of this Section 4.6, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the Borrower.
Upon the request of the Borrower or the Agent, each Lender
that is organized under the laws of a jurisdiction other than the
United States shall, prior to the due date of any payments under
the Notes, execute and deliver to the Borrower and the Agent, on
or about the first scheduled payment date in each Fiscal Year,
one or more (as the Borrower or the Agent may reasonably request)
United States Internal Revenue Service Forms 4224 or Forms 1001
or such other forms or documents (or successor forms or
documents), appropriately completed, as may be applicable to
establish the extent, if any, to which a payment to such Lender
is exempt from withholding or deduction of Taxes.
SECTION IV.7. Lender Statements; Survival of Indemnity. To
the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its LIBO Rate
Loans to reduce any liability of the Borrower to such Lender
under Section 4.3 or to avoid the unavailability of LIBO Rate
Loans under Section 4.1 or 4.2, so long as such designation is
not disadvantageous to such Lender as determined by such Lender
in good faith. A written statement of a Lender as to the amount
due under Section 4.3, 4.4, 4.5 or 4.6 shall be final, conclusive
and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in
connection with a LIBO Rate Loan shall be calculated as though
each Lender funded its LIBO Rate Loan through the purchase of a
deposit of the type and maturity corresponding to the deposit
used as a reference in determining the LIBO Rate applicable to
such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written
statement shall be payable on demand after receipt by the
Borrower of the written statement. The obligations of the
Borrower under Sections 4.3, 4.4, 4.5, and 4.6 shall survive
payment of the Obligations and termination of this Agreement.
SECTION IV.8. Replacement of Lenders. If any Lender is
unable to make a LIBO Rate Loan pursuant to Section 4.1 or 4.2,
is subject to increased costs pursuant to Section 4.3, 4.4, 4.5
or 4.6 fails to designate an alternate Lending Installation
pursuant to Section 4.3 or 4.7, or is owed or reasonably
anticipates being owed additional amounts pursuant to Section 4.3
or 4.5 and fails to take action to the extent required under
Section 4.3, 4.5 or 4.7 to avoid or reduce any such additional
amounts, the Borrower shall have the right, if no Event of
Default then exists, to replace such Lender with another
financial institution reasonably acceptable to the Agent provided
that (i) such financial institution shall unconditionally offer
in writing (with a copy to the Agent) to purchase, in accordance
with Section 10.11.1, all of such Lender's rights and obligations
under this Agreement and the Notes, without recourse or expense
to, or warranty (except warranty of ownership which is free and
clear of any adverse claims) by, such Lender being replaced for a
purchase price equal to the aggregate outstanding principal
amount of the Notes payable to such Lender plus accrued but
unpaid fees and interest in respect of such Lender's Commitment
hereunder to the date of such purchase on a date therein
specified, (ii) the Obligations of the Borrower owing pursuant to
Section 4.3, 4.5 and 4.6 to the Lender being replaced and all
costs and expenses owing to such Lender pursuant to Section 4.4
shall be paid in full to the Lender being replaced concurrently
with such replacement, (iii) the replacement financial
institution shall execute a Lender Assignment Agreement pursuant
to which it shall become a party hereto as provided in Section
10.11.1 and shall pay the processing fee required pursuant to
such Section, and (iv) upon compliance with the provisions for
assignment provided in Section 10.11.1 and the payment of amounts
referred to in clause (i), the replacement financial institution
shall constitute a "Lender" hereunder and the Lender being so
replaced shall no longer constitute a "Lender" hereunder;
provided that (x) if such Lender accepts such an offer and such
financial institution fails to purchase on such specified date in
accordance with the terms of such offer, the Borrower shall
continue to be obligated to pay the increased cost, amounts,
expenses and taxes under Sections 4.3, 4.4, 4.5 and 4.6 above to
such Lender and (y) if such Lender fails to accept such purchase
offer, the Borrower shall not be obligated to pay such Lender
such increased cost pursuant to such Sections from and after the
date of such purchase offer.
SECTION IV.9. Payments, Computations, etc. Unless
otherwise expressly provided, all payments by the Borrower
pursuant to this Agreement, the Notes or any other Loan Document
shall be made by the Borrower to the Agent for the pro rata
account of the Lenders entitled to receive such payment. All
such payments required to be made to the Agent shall be made,
without setoff, deduction or counterclaim, not later than 12:00
noon, New York, New York time, on the date due, in same day or
immediately available funds, to such account as the Agent shall
specify from time to time by notice to the Borrower. Funds
received after that time shall be deemed to have been received by
the Agent on the next succeeding Business Day. The Agent shall
promptly remit in same day funds to each Lender its share, if
any, of such payments received by the Agent for the account of
such Lender. All interest and fees shall be computed on the
basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which
such interest or fee is payable over a year comprised of 360 days
(or, in the case of interest on a Base Rate Loan, 365 days or, if
appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such
payment shall (except as otherwise required by clause (c) of the
definition of the term "Interest Period" with respect to LIBO
Rate Loans) be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and
fees, if any, in connection with such payment.
SECTION IV.10. Sharing of Payments. If any Lender shall
obtain any payment or other recovery (whether voluntary, involun
tary, by application of setoff or otherwise) on account of any
Loan (other than pursuant to the terms of Sections 4.3, 4.4 and
4.5) in excess of its pro rata share of payments then or
therewith obtained by all Lenders, such Lender shall purchase
from the other Lenders such participations in Loans made by them
as shall be necessary to cause such purchasing Lender to share
the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such
purchasing Lender, the purchase shall be rescinded and each
Lender which has sold a participation to the purchasing Lender
shall repay to the purchasing Lender the purchase price to the
ratable extent of such recovery together with an amount equal to
such selling Lender's ratable share (according to the proportion
of (a) the amount of such selling Lender's required repayment to
the purchasing Lender to (b) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing
a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights
of payment (including pursuant to Section 4.11) with respect to
such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation. If
under any applicable bankruptcy, insolvency or other similar law,
any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders entitled
under this Section to share in the benefits of any recovery on
such secured claim.
SECTION IV.11. Setoff. Each Lender shall, upon the
occurrence of any Default described in clauses (a) through (d) of
Section 8.1.9 with respect to the Borrower, any Material
Subsidiary or NBPC or, with the consent of the Required Lenders,
upon the occurrence of any other Event of Default, have the right
to appropriate and apply to the payment of the Obligations owing
to it (whether or not then due) any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Lender; provided, however, that any such
appropriation and application shall be subject to the provisions
of Section 4.10. Each Lender agrees promptly to notify the
Borrower and the Agent after any such setoff and application made
by such Lender; provided, however, that the failure to give such
notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Lender may
have.
SECTION IV.12. Use of Proceeds. The Borrower shall apply
the proceeds of each Borrowing in accordance with clauses (a) and
(b) of the fifth recital; provided that, proceeds of any
Borrowing may be used for general business purposes of the
Borrower as set forth in clause (b) of the fifth recital only if
prior to such use the Expansion and Extension shall have been
completed such that NBPC has received written authorization from
the FERC, or its representative, to commence service on the
Expansion and Extension and NBPC shall have complied in all
material respects with the terms of the FERC Certificate of
Public Convenience and Necessity dated August 1, 1997 issued to
NBPC, and the Agent shall have received a certificate from an
Authorized Officer of the Borrower certifying that NBPC has
received such written authorization; and further provided that
the amount used for such general business purposes at any one
time outstanding shall be no greater than the lesser of (a) the
difference (if positive) between the Commitment Amount then in
effect and the aggregate principal of Loans outstanding as of the
date such certificate is delivered by an Authorized Officer of
the Borrower and (b) $40,000,000. Without limiting the
foregoing, no proceeds of any Loan will be used to make any
distribution on Limited Partnership Units or General Partners'
interests in the Borrower or to acquire any equity security of a
class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934 or any "margin stock", as defined
in F.R.S. Board Regulation U.
ARTICLE V
CONDITIONS TO BORROWING
SECTION V.1. Initial Borrowing. The obligations of the
Lenders to fund the initial Borrowing shall be subject to the
prior or concurrent satisfaction of each of the conditions
precedent set forth in this Section 5.1.
SECTION V.1.1. Resolutions, etc. The Agent shall have
received from the Secretary or an Assistant Secretary of the
Partnership Policy Committee of each of the Borrower and of the
Intermediate Partner a certificate, dated the Effective Date, as
to
(a) copies of any action taken by the policy and
management committee of the Borrower or Intermediate
Partnership or other partnership action of the Borrower or
Intermediate Partnership with respect to this Agreement, the
Notes, or any other Loan Document to be signed by the
Borrower or the Intermediate Partnership, as the case may
be;
(b) the incumbency and signatures of those of its
officers authorized to act with respect to this Agreement,
the Notes and each other Loan Document executed by it on
behalf of the Borrower, and
(c) the Partnership Agreement or Intermediate
Partnership Agreement (as the case may be) and all
amendments and supplements thereto.
The Agent shall have received from each General Partner of
the Borrower and the Intermediate Partnership, a certificate,
dated the Effective Date, of its Secretary or Assistant Secretary
as to
(a) resolutions of its Board of Directors then in full
force and effect with respect to any corporate action taken
authorizing the execution, delivery and performance of, this
Agreement on behalf of such General Partner, and
(b) the incumbency and signatures of those of its
officers authorized to act with respect to this Agreement on
behalf of such General Partner.
The Agent shall have received from the Operator a
certificate dated the Effective Date, of an officer of the
Operator familiar with such matters, as to the incumbency and
signature of any of its officers or employees acting as
Authorized Representatives.
Each Lender may conclusively rely upon each certificate
described in this Section 5.1.1 until it shall have received a
further certificate of the Secretary of such General Partner
canceling or amending such prior certificate.
SECTION V.1.2. Delivery of Notes. The Agent shall have
received, for the account of each Lender, its Notes duly executed
and delivered by the Borrower.
SECTION V.1.3. Guaranty. The Agent shall have received the
Guaranty duly executed and delivered by the Intermediate
Partnership.
SECTION V.1.4. Opinions of Counsel. The Agent shall have
received opinions, dated the date of the Effective Date and
addressed to the Agent and all Lenders, from (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
L.L.P., counsel to the Borrower and the Intermediate Partnership,
substantially in the form of Exhibit E-1 hereto; (ii) ▇▇▇▇▇
Place, Vice President and General Counsel of Northern Plains
Natural Gas Company, substantially in the form of Exhibit E-2
hereto; and (iii) counsel for each of the General Partners,
substantially in the form of Exhibit E-3 hereto.
SECTION V.1.5. Closing Fees, Expenses, etc. The Agent
shall have received for its own account, or for the account of
each Lender, as the case may be, all fees, costs and expenses due
and payable pursuant to Sections 3.3 and 10.3, if then invoiced.
SECTION V.2. All Borrowings. The obligation of each
Lender to fund any Loan on the occasion of any Borrowing
(including the initial Borrowing) shall be subject to the
satisfaction of each of the conditions precedent set forth in
this Section 5.2.
SECTION V.2.1. Compliance with Warranties, No Default,
etc. Both before and after giving effect to any Borrowing (but,
if any Default of the nature referred to in Section 8.1.5 shall
have occurred with respect to any other Indebtedness, without
giving effect to the application, directly or indirectly, of the
proceeds thereof) the following statements shall be true and
correct
(a) the representations and warranties set forth in
Article VI hereof and in Article III of the Guaranty
(excluding, however, those contained in Section 6.7 hereof)
shall be true and correct with the same effect as if then
made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true
and correct as of such earlier date); and
(b) no Default shall have then occurred and be
continuing.
SECTION V.2.2. Material Adverse Change. Since the date of
the financial statements referenced in Section 6.5, there shall
have been no material adverse change in the financial condition,
operations, assets, business or properties of the Borrower, its
Subsidiaries and NBPC, taken as a whole. Since the date of the
financial statements referenced in Section 6.5, there shall have
been no change in the policy of NBPC or the Intermediate
Partnership with respect to cash disbursements and distributions
to the Borrower which would have a Material Adverse Effect on the
Borrower.
SECTION V.2.3. Borrowing Request. The Agent shall have
received a Borrowing Request for such Borrowing. Each of the
delivery of a Borrowing Request and the acceptance by the
Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of
such Borrowing (both immediately before and after giving effect
to such Borrowing and the application of the proceeds thereof)
the statements made in Section 5.2.1 are true and correct.
SECTION V.2.4. Legal Matters. All legal matters incident
to the making of such Loans shall be satisfactory to the Agent
and its counsel.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into
this Agreement and to make Loans hereunder, the Borrower
represents and warrants unto the Agent and each Lender as set
forth in this Article VI.
SECTION VI.1. Organization, etc. The Borrower is a
limited partnership formed and existing and in good standing
under the laws of the State of Delaware, is duly qualified to do
business as a foreign limited partnership and is in good standing
in each jurisdiction where the nature of its business requires
such qualification, and has full power and authority and holds
all requisite governmental licenses, permits and other approvals
to enter into and perform its Obligations under this Agreement,
the Notes and each other Loan Document to which it is a party and
to own and hold under lease its property and to conduct its
business substantially as currently conducted by it. NBPC is a
general partnership duly formed, validly existing and in good
standing under the laws of the State of Texas, and has full power
and authority and holds all requisite governmental licenses,
permits and other approvals to own and hold under lease its
property and to conduct its business substantially as currently
conducted by it in each jurisdiction in which its business is
conducted.
SECTION VI.2. Due Authorization, Non-Contravention, etc.
The execution, delivery and performance by the Borrower of this
Agreement, the Notes and each other Loan Document executed or to
be executed by it, and the Borrower's ownership of interests in
the Intermediate Partnership and, indirectly through the
Intermediate Partnership, of interests in NBPC and NBPC's
construction of the Expansion and Extension are within the
Borrower's, the Intermediate Partnership's and NBPC's partnership
powers, as the case may be, have been duly authorized by all
necessary action, and do not
(a) contravene the Organic Documents of the Borrower,
the Intermediate Partnership or NBPC, as the case may be;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on
or affecting the Borrower, the Intermediate Partnership or
NBPC; or
(c) result in, or require the creation or imposition
of, any Lien on any of the Borrower's, the Intermediate
Partnership's or NBPC's properties.
SECTION VI.3. Government Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance by the Borrower of this Agreement, the Notes or any
other Loan Document, or for the Borrower's ownership of its
interests in the Intermediate Partnership or, indirectly through
the Intermediate Partnership, of interests in NBPC. Neither the
Borrower nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended. The Borrower and its Subsidiaries are not subject to,
or are exempt from regulation as, a "holding company" or a
"subsidiary company" of a "holding company" under, the Public
Utility Holding Company Act of 1935, as amended, in each case as
such terms are defined in that Act.
SECTION VI.4. Validity, etc. This Agreement constitutes,
and the Notes and each other Loan Document executed by the
Borrower will, on the due execution and delivery thereof,
constitute, the legal, valid and binding obligations of the
Borrower enforceable in accordance with their respective terms,
except as such enforceability may be limited by any applicable
bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and except that enforceability
under the Loan Documents is subject to general principles of
equity (regardless of whether such enforceability is considered
at law or in equity).
SECTION VI.5. Financial Information. The
(a) consolidated financial statements of the Borrower dated as of
June 30, 1997, which reflect the consolidated financial
information for the Borrower, all Subsidiaries of the Borrower
and NBPC and (b) the unconsolidated financial statements of the
Borrower dated as of June 30, 1997, which reflect solely the
combined financial information for the Borrower and the
Intermediate Partnership on a stand-alone basis, copies of which
in each case have been furnished to the Agent and each Lender,
have been prepared in accordance with GAAP consistently applied,
except as to consolidation requirements in the case of the
financial statements referred to in clause (b), and present
fairly the consolidated or unconsolidated financial condition of
the Borrower, as the case may be, and the partnerships covered
thereby at the dates thereof and the results of their operations
for the periods then ended.
SECTION VI.6. No Material Adverse Change. Since the date
of the financial statements described in Section 6.5, there has
been no material adverse change in the financial condition,
operations, assets, business or properties of the Borrower or the
Intermediate Partnership.
SECTION VI.7. Litigation, Labor Controversies, etc.
There is no pending or, to the knowledge of the Borrower,
threatened litigation, action, proceeding, or labor controversy
affecting the Borrower, NBPC or any of the Borrower's
Subsidiaries, or any of their respective properties, businesses,
assets or revenues, which could reasonably be expected to have a
Material Adverse Effect on the Borrower or which purports to
affect the legality, validity or enforceability of this
Agreement, the Notes or any other Loan Document, except as
disclosed in the Form 10-K of the Borrower dated as of December
31, 1996 or the Form 10-Q of the Borrower dated as of June 30,
1997.
SECTION VI.8. Material Subsidiaries. As of the Effective
Date, the Borrower has no Material Subsidiaries, except the
Intermediate Partnership.
SECTION VI.9. Ownership of Properties. The Borrower owns
good and marketable title to all of its properties and assets,
real and personal, tangible and intangible, of any nature
whatsoever (including patents, trademarks, trade names, service
marks and copyrights), free and clear of all Liens, charges or
claims (including infringement claims with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant
to Section 7.2.2.
SECTION VI.10. Taxes. The Borrower and each of its
Material Subsidiaries has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes
and governmental charges thereby shown to be owing, except any
such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its
books.
SECTION VI.11. ERISA Plans. As of the Effective Date, the
Borrower has no Plans, and as of any date thereafter, shall have
no Plans except Plans which conform to Section 7.2.14.
SECTION VI.12. Environmental Matters. None of the
Borrower, any of its Subsidiaries or NBPC is subject to any
liability or obligation for remedial action under any
Environmental Laws which could reasonably be expected to have a
Material Adverse Effect on the Borrower, its Subsidiaries and
NBPC, taken as a whole. There is no pending or, to the best of
the Borrower's knowledge, threatened investigation or inquiry
regarding the Borrower, any of its Subsidiaries or NBPC or any
properties of any of the foregoing (i) pertaining to any
violation of any Environmental Law relating to Hazardous
Materials, or (ii) which could reasonably be expected to result
in any requirement that the Borrower, such Subsidiary or NBPC
conduct any clean-up or remediation activities with respect to
any Hazardous Materials which could reasonably be expected to
have a Material Adverse Effect on the Borrower, its Subsidiaries
and NBPC, taken as a whole. There are no Hazardous Materials
located on or under any of the properties of the Borrower, any of
its Subsidiaries or NBPC which could reasonably be expected to
have a Material Adverse Effect on the Borrower, its Subsidiaries
and NBPC, taken as a whole. None of the Borrower, any of its
Subsidiaries or NBPC has caused or permitted any Hazardous
Material to be disposed of on or under or released from any of
its properties which disposal or release could reasonably be
expected to have a Material Adverse Effect on the Borrower, its
Subsidiaries and NBPC, taken as a whole. The Borrower has no
knowledge of any violation of any Environmental Law by any
previous owner of any of its properties or properties owned by
any of its Subsidiaries or NBPC that could reasonably be expected
to have a Material Adverse Effect on the Borrower, its
Subsidiaries and NBPC, taken as a whole.
SECTION VI.13. Regulations G, U and X. The Borrower is
not engaged in the business of extending credit for the purpose
of purchasing or carrying margin stock, and no proceeds of any
Loans will be used for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation G, U or X. Terms for
which meanings are provided in F.R.S. Board Regulation G, U or X
or any regulations substituted therefor, as from time to time in
effect, are used in this Section with such meanings.
SECTION VI.14. Default. No Default or Event of Default
has occurred and is continuing. To the knowledge of the
Borrower, no default in the payment when due, whether by
acceleration or otherwise, of any Indebtedness of NBPC has
occurred and is continuing.
SECTION VI.15. Accuracy of Information. All factual
information (taken as a whole) heretofore or contemporaneously
furnished by or on behalf of the Borrower in writing to the Agent
or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all
other such factual information hereafter furnished by or on
behalf of the Borrower to the Agent or any Lender will be, true
and accurate in every material respect on the date as of which
such information is dated or certified and as of the date of
execution and delivery of this Agreement by the Agent and such
Lender, and such information is not, or shall not be, as the case
may be, incomplete by omitting to state any material fact
necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which
such information was provided.
ARTICLE VII
COVENANTS
SECTION VII.1. Affirmative Covenants. The Borrower agrees
with the Agent and each Lender that, until all Commitments have
terminated and all Obligations have been paid and performed in
full, the Borrower will perform the obligations set forth in this
Section 7.1.
SECTION VII.1.1. Financial Information, Reports, Notices,
etc. The Borrower will furnish, or will cause to be furnished,
to each Lender and the Agent copies of the following financial
statements, reports, notices and information:
(a) as soon as available and in any event within 60
days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Borrower,
(i) consolidated financial statements of the Borrower which
reflect consolidated information for the Borrower, its
Subsidiaries and NBPC dated as of the end of such Fiscal
Quarter, (ii) consolidating financial statements of the
Borrower and of the Intermediate Partnership dated as of the
end of such Fiscal Quarter, which reflect solely the
information of the Borrower and of the Intermediate
Partnership, exclusive of any other subsidiaries and (iii) a
statement reconciling the items of Indebtedness and
Capitalization as reported on the balance sheets contained
in the financial statements described in clauses (i) and
(ii) above, in each case for such Fiscal Quarter and for the
period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, certified by the
chief financial Authorized Officer of the Borrower;
(b) as soon as available and in any event within 120
days after the end of each Fiscal Year of the Borrower, a
copy of the annual audit report for such Fiscal Year for the
Borrower for the consolidated balance sheets of the Borrower
as of the end of such Fiscal Year and consolidated
statements of earnings and cash flow of the Borrower for
such Fiscal Year, in each case certified (without any
Impermissible Qualification) in a manner acceptable to the
Agent and the Required Lenders by independent public
accountants acceptable to the Agent and the Required
Lenders;
(c) as soon as available and in any event within 120
days after the end of each Fiscal Year of the Borrower:
(i) financial statements of the Borrower dated as of the end
of such Fiscal Year, which reflect the consolidated
financial information for the Borrower, its Subsidiaries,
and NBPC, (ii) consolidating financial statements of the
Borrower and of the Intermediate Partnership dated as of the
end of such Fiscal Year, which reflect solely the financial
information for the Borrower and for the Intermediate
Partnership, exclusive of any other subsidiaries; and
(iii) a statement reconciling items of Indebtedness and
Capitalization as reported on the balance sheets contained
in the financial statements described in clauses (i) and
(ii) above; in each case certified by the chief financial
Authorized Officer of the Borrower;
(d) as soon as available and in any event as of the
date of delivery of the financial statements required above
after the end of each Fiscal Quarter, a certificate,
executed by the chief financial Authorized Officer of the
Borrower, stating that the financial statements fairly
present the Borrower's financial condition and results of
operations and showing (in reasonable detail and with
appropriate calculations and computations in all respects
satisfactory to the Agent) compliance with the financial
covenant set forth in Section 7.2.3;
(e) as soon as possible and in any event within ten
Business Days after an Authorized Officer has knowledge of
the occurrence of each Default, a statement of the chief
financial Authorized Officer of the Borrower setting forth
details of such Default and the action which the Borrower
has taken and proposes to take with respect thereto;
(f) as soon as possible and in any event within ten
Business Days after (x) the occurrence of any adverse
development with respect to any litigation, action,
proceeding, or labor controversy described in Section 6.7 or
(y) the commencement of any labor controversy, litigation,
action, proceeding of the type described in Section 6.7, in
each case which could reasonably be expected to have a
Material Adverse Effect on the Borrower or which purports to
affect the legality, validity or enforceability of this
Agreement, the Notes or any other Loan Document, notice
thereof and copies of all documentation relating thereto;
(g) promptly after the sending or filing thereof,
copies of all reports which the Borrower sends to any of its
security holders, and all reports and registration
statements which the Borrower or any of its Subsidiaries
files with the Securities and Exchange Commission or any
national securities exchange; and
(h) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any
of its Subsidiaries as any Lender through the Agent may from
time to time reasonably request.
SECTION VII.1.2. Compliance with Laws, etc. The Borrower
will comply, and in the case of clause (b) below will cause each
of its Subsidiaries and NBPC to comply, in all material respects
with all applicable laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards except where the
failure to so comply will not reasonably be expected to have a
Material Adverse Effect, such compliance to include (without
limitation): (a) the maintenance and preservation of its
existence and qualification as a foreign limited partnership;
(b) compliance with all Environmental Laws; and (c) the payment,
before the same become delinquent, of all taxes, assessments and
governmental charges imposed upon it or upon its property except
to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION VII.1.3. Maintenance of Properties. The Borrower
will, and will cause each of its Material Subsidiaries to,
maintain, preserve, protect and keep its properties in good
repair, working order and condition in accordance with prudent
industry practices, and make necessary and proper repairs,
renewals and replacements so that its business carried on in
connection therewith in accordance with prudent industry
practices, ordinary wear and tear excepted unless the Borrower or
such Material Subsidiary determines in good faith that the
continued maintenance of any of the properties of the Borrower or
such Material Subsidiary is no longer economically desirable.
SECTION VII.1.4. Insurance. The Borrower will maintain or
cause to be maintained with responsible insurance companies
insurance with respect to its properties and business against
such casualties and contingencies and of such types and in such
amounts as is consistent with prudent industry practice and will,
upon request of the Agent, furnish to each Lender at reasonable
intervals a certificate of an Authorized Officer of the Borrower
setting forth the nature and extent of all insurance maintained
by the Borrower in accordance with this Section.
SECTION VII.1.5. Books and Records. The Borrower will keep
books and records which accurately reflect all of its business
affairs and transactions and permit the Agent and each Lender or
any of their respective representatives, at reasonable times and
intervals (during normal business hours), to visit all of its
offices, to discuss its financial matters with its officers and,
upon reasonable notice, to examine (and, at the expense of the
Borrower, photocopy extracts from) any of its books or other
corporate records.
SECTION VII.1.6. [Reserved.]
SECTION VII.1.7. Pari Passu Status. The Borrower will
ensure that the claims and rights of the Lenders against it under
this Agreement and each other Loan Document will not be
subordinate to, and will rank at all times at least pari passu
with, all other Indebtedness of the Borrower. The Borrower will
not amend, modify or supplement any credit agreement, notes or
other document relating to its Indebtedness in any manner which
would make them materially more onerous to the Borrower than the
provisions of this Agreement and the Notes as in effect from time
to time.
SECTION VII.1.8. Maintenance of Tax Status. The Borrower
shall take all action necessary to prevent the Borrower, the
Intermediate Partnership or NBPC from being, and will take no
action which would have the effect of causing any of the
Borrower, the Intermediate Partnership or NBPC to be, treated as
an association taxable as a corporation or otherwise to be taxed
as an entity for federal income tax purposes.
SECTION VII.1.9. Obligations to Make Loans or Purchase
Units. If for any period the aggregate amount of cash
distributions on the Limited Partnership Units and the General
Partners' interests which the Partnership Policy Committee of the
Borrower, in its sole discretion, determines are to be made for
such period is greater than cash available from (a) funds held by
the Borrower or the Intermediate Partnership resulting from
Borrowings for the reimbursement of equity contributions for the
Expansion and Extension prior to the Effective Date,(b) funds
held by the Borrower or the Intermediate Partnership at the
beginning of such period as a result of distributions from
Subsidiaries and NBPC to the Borrower or the Intermediate
Partnership in prior periods which have not yet been distributed
by the Borrower and (c) distributions made to the Borrower or the
Intermediate Partnership by Subsidiaries and NBPC with respect to
such period, the General Partners of the Borrower, each on a
several basis in proportion to their respective general partner
interest in the Borrower hereby agree to make loans to the
Borrower (which loans shall constitute Subordinated Debt) on
terms and conditions satisfactory to the Required Lenders or to
purchase additional Subordinated Units in an amount sufficient to
provide for such cash distributions.
SECTION VII.2. Negative Covenants. The Borrower agrees
with the Agent and each Lender that, until all Commitments have
terminated and all Obligations have been paid and performed in
full, the Borrower will perform the obligations set forth in this
Section 7.2.
SECTION VII.2.1. Indebtedness. The Borrower will not, and
will not permit the Intermediate Partnership to, create, incur,
assume or suffer to exist or otherwise become or be liable in
respect of any Indebtedness, other than, without duplication, the
following:
(a) Indebtedness in respect of the Loans and other
Obligations;
(b) unsecured Indebtedness incurred in the ordinary
course of business (including open accounts extended by
suppliers on normal trade terms in connection with purchases
of goods and services, but excluding Indebtedness incurred
through the borrowing of money or Guaranteed Liabilities);
(c) [Reserved.];
(d) Indebtedness in an aggregate amount not to exceed
$25,000,000 the proceeds of which are incurred for the
stated purpose of capital contributions to NBPC, whether
directly or through the Intermediate Partnership or for
acquisitions or capital investments by the Borrower, either
directly or indirectly through its Subsidiaries;
(e) other Indebtedness of the Borrower not permitted
pursuant to clauses (a) or (d) above for borrowed money for
which, pursuant to Section 2.2, the Commitment Amount
hereunder shall be reduced;
(f) Indebtedness constituting Subordinated Debt
resulting from loans made by any Subsidiary of the Borrower,
NBPC or the General Partners of the Borrower to the Borrower
on terms and conditions satisfactory to the Required
Lenders, acting in good faith, solely for the purpose of
making distributions to the Common Unit holders as described
in Section 7.1.9 hereof;
(g) Indebtedness of the Intermediate Partnership
resulting from loans made by any Subsidiary of the
Intermediate Partnership or its General Partners to the
Intermediate Partnership on terms and conditions
satisfactory to the Required Lenders, acting in good faith,
provided that, payment obligations of the Intermediate
Partnership resulting from any Indebtedness of the
Intermediate Partnership pursuant to loans from its General
Partners or a Subsidiary of the Intermediate Partnership
shall be subordinated on terms and conditions satisfactory
to the Required Lenders in right of payment to its
obligations under the Guaranty; and
(h) Indebtedness of the Intermediate Partnership
resulting from loans made by the Borrower to the
Intermediate Partnership, provided that, such loans from the
Borrower comply with Section 7.2.4 hereof;
provided, however, that no Indebtedness otherwise permitted by
clauses (b), (d), (e) or (h) shall be permitted if, after giving
effect to the incurrence thereof, any Default shall have occurred
and be continuing.
SECTION VII.2.2. Liens. The Borrower will not, and will not
permit the Intermediate Partnership to, create, incur, assume or
suffer to exist any Lien upon any of its property, revenues or
assets, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter
payable without penalty or being diligently contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside
on its books;
(b) Liens of carriers, operators, warehousemen,
mechanics, materialmen and landlords incurred in the
ordinary course of business for sums not overdue or being
diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(c) Liens incurred in the ordinary course of business
in connection with workmen's compensation, unemployment
insurance or other forms of governmental insurance or
benefits, or to secure performance of tenders, statutory
obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds;
(d) judgment Liens in existence less than 30 days
after the entry thereof or with respect to which execution
has been stayed or the payment of which is covered in full
(subject to a customary deductible) by insurance maintained
with responsible insurance companies; and
(e) Liens securing Indebtedness of the Borrower if,
and only if, concurrently with the creation of such Lien,
all senior unsecured Indebtedness of the Borrower hereunder
is equally and ratably secured by such Liens.
SECTION VII.2.3. Financial Condition. The Borrower will not
permit its Debt to Capitalization Ratio to be greater than 35%.
SECTION VII.2.4. Investments. The Borrower will not make,
incur, assume or suffer to exist any Investment in any other
Person, except:
(a) Investments existing on the Effective Date and
identified in Item 7.2.4(a) ("Ongoing Investments") of the
Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as
Indebtedness pursuant to Section 7.2.1;
(d) in the ordinary course of business, Investments,
including contributions of capital, loans and advances, by
the Borrower, directly or through the Intermediate
Partnership, (i) in NBPC, and (ii) acquisitions and capital
investments which comply with Section 7.2.7;
(e) Eurodollar deposits having a term of no more than
180 days with the overseas branch of any Lender or any
domestic bank having a capital and surplus of at least
$500,000,000; or
(f) participations having a term of no more than 90
days with (i) any Lender or (ii) any financial institution,
the unsecured debt of which is rated in one of the two
highest letter rating categories (e.g. in the case of
Standard & Poors, either its AAA or AA category) by a
nationally recognized securities credit rating agency, in
loans made or owned by such Lender or other financial
institution to Persons which have open market commercial
paper rated in either of the two highest short-term rating
categories by a nationally recognized securities credit
rating agency;
provided, however, that
(g) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that
such Investment if made thereafter would not comply with
such requirements; and
(h) no Investment otherwise permitted by clause (d) or
clause (f) shall be permitted to be made if, immediately
before or after giving effect thereto, any Default shall
have occurred and be continuing.
SECTION VII.2.5. Payments to Limited Partnership Units, etc.
On and at all times after the Effective Date:
(a) the Borrower will not declare, pay or make any
distribution (in cash, property or obligations) on any
interests (now or hereafter outstanding) in the Borrower or
apply any of its funds, property or assets to the purchase
of any partnership interests in the Borrower; provided,
that, the Borrower may make distributions on the Limited
Partnership Units and General Partners' interests in
accordance with the Partnership Agreement during any period
in the amount determined by the Partnership Policy Committee
of the Borrower in its sole discretion.
(b) the Borrower will not, and will not permit any of
its Subsidiaries to
(i) make any payment or prepayment of principal
of, or make any payment of interest on, any
Subordinated Debt on any day other than the stated,
scheduled date for such payment or prepayment set forth
in the documents and instruments memorializing such
Subordinated Debt, or which would violate the
subordination provisions of such Subordinated Debt; or
(ii) redeem, purchase or defease, any
Subordinated Debt; and
(c) the Borrower will not, and will not permit any
Subsidiary to, make any deposit for any of the foregoing
purposes.
SECTION VII.2.6. Rental Obligations. The Borrower will not,
and will not permit the Intermediate Partnership to, enter into
at any time any arrangement which does not create a Capitalized
Lease Liability and which involves the leasing by the Borrower or
any of its Subsidiaries from any lessor of any real or personal
property (or any interest therein), except arrangements which,
together with all other such arrangements which shall then be in
effect, will not require the payment of an aggregate amount of
rentals by the Borrower and its Subsidiaries in excess of
(excluding escalations resulting from a rise in the consumer
price or similar index) $1,000,000 for any Fiscal Year or
$3,000,000 during the full remaining term of such arrangements;
provided, however, that any calculation made for purposes of this
Section shall exclude any amounts required to be expended for
maintenance and repairs, insurance, taxes, assessments, and other
similar charges.
SECTION VII.2.7. Limitation on Business Activities. The
Borrower will not engage in any business activity except the
ownership of a limited partner interest in the Intermediate
Partnership and such activities as may be incidental or related
thereto. The Borrower shall not permit NBPC or any Subsidiary of
the Borrower to engage, directly or indirectly, in any business
activity except (a) existing business activities consisting of
the ownership and operation of natural gas and coal pipelines,
the extension and expansion of such pipelines and related
facilities, services related to transportation and marketing of
natural gas and coal and such activities as may be incidental or
related to the aforementioned and (b) new business activities in
the area of exploration, development, production, processing,
refining, transportation or marketing of gas, oil, coal or
products thereof, provided that the gross income of such
activities allows the Borrower to meet the exception in Section
7704 of the Code.
SECTION VII.2.8. Consolidation, Merger, etc. Except as
provided in its Partnership Agreement, the Borrower will not
liquidate or dissolve, consolidate with, or merge into or with,
any other partnership, corporation or other entity, or purchase
or otherwise acquire all or substantially all of the assets of
any Person (or of any division thereof) and each General Partner
agrees that it will not sell, assign or transfer its interest in
the Borrower or Intermediate Partnership or make any material
change in the voting structure of the Borrower or Intermediate
Partnership, except that a General Partner may sell, assign or
transfer its partnership interest in the Borrower or Intermediate
Partnership or consent to a change in voting structure if
(a) such sale, assignment, transfer or change in voting
structure, after taking into account all sales, assignments or
transfers occurring since the Effective Date (including
contemporaneous sales, assignments or transfers, if any) of an
interest in the Borrower and Intermediate Partnership by a
General Partner and each change in voting structure occurring
since the Effective Date (including contemporaneous changes, if
any), will not result in a Change in Control and (b) such sale,
assignment or transfer is to an entity the senior unsecured debt
of which is rated at least BBB by Standard & Poor's or at least
Baa2 by ▇▇▇▇▇'▇ Investors Services.
SECTION VII.2.9. Issuance of Units. The Borrower will not
issue additional Common Units or Subordinated Units unless (a)
upon the issuance of any Common Units the Commitment Amount shall
be reduced as set forth in Section 2.2 and (b) the proceeds from
the issuance of any additional Subordinated Units (net of
reasonable issuance costs) shall be used for distributions to the
Common Unit holders pursuant to Section 7.1.9.
SECTION VII.2.10. Asset Dispositions, etc. The Borrower
will not sell, transfer, lease, contribute or otherwise convey,
or grant options, warrants or other rights with respect to, all
or any substantial part of its assets (including accounts
receivable and partnership interests in Material Subsidiaries) to
any Person, unless such sale, transfer, lease, contribution or
conveyance is in the ordinary course of its business or is a
disposition of assets which are obsolete or are no longer used or
useful in the business of the Borrower.
SECTION VII.2.11. Modification of Certain Agreements.
The Borrower will not consent to any amendment, supplement or
other modification of any of the terms or provisions contained in
any document or instrument evidencing or applicable to any
Subordinated Debt, other than any amendment, supplement or other
modification which extends the date or reduces the amount of any
required repayment or redemption.
The General Partners and the Borrower each agrees that it
shall not, and the Intermediate Partnership shall not, consent to
or vote in favor of any amendment of (a) the cash distribution
policies of NBPC or the Intermediate Partnership in any manner
which would have a Material Adverse Effect on the Borrower or
materially adversely affect the rights and remedies of the
Lenders under and in connection with this Agreement, the Notes or
any other Loan Document; or (b) the NBPC Partnership Agreement or
the Intermediate Partnership Agreement in any manner which would
(i) have a material adverse effect on the rights and remedies of
the Lenders under and in connection with this Agreement, the
Notes or any other Loan Document; or (ii) have a Material Adverse
Effect on the Borrower. Each of the General Partners and the
Borrower agree that there shall be no change in the Operator
without the consent of the Required Lenders except upon a finding
by the requisite number of Representatives to the Management
Committee (such terms used herein as defined in the NBPC
Partnership Agreement) of NBPC (other than the Representative
designated by Northern Plains Natural Gas Company) pursuant to
Section 8.4.2 of the NBPC Partnership Agreement that the Operator
has, through misfeasance, nonfeasance or gross negligence, acted
in a manner contrary to the best interests of NBPC. Each General
Partner agrees that it shall not consent to or vote in favor of
any amendment of the Partnership Agreement which would have a
Material Adverse Effect on the rights and remedies of the Lenders
under and in connection with this Agreement, the Notes or any
other Loan Document or have a Material Adverse Effect on the
Borrower.
SECTION VII.2.12. Transactions with Affiliates. The
Borrower will not, and will not permit any of its Material
Subsidiaries to, enter into, or cause, suffer or permit to exist
any arrangement or contract with any of its other Affiliates
unless such arrangement or contract is fair and equitable to the
Borrower or such Material Subsidiary and is an arrangement or
contract of the kind which would be entered into by a prudent
Person in the position of the Borrower or such Material
Subsidiary with a Person which is not one of its Affiliates.
SECTION VII.2.13. Negative Pledges, Restrictive
Agreements, etc. The Borrower will not, and will not permit any
of its Material Subsidiaries to, enter into any agreement
(excluding this Agreement and each other Loan Document and any
other document or agreement governing Indebtedness permitted by
Section 7.2.1) prohibiting (a) the creation or assumption of any
Lien upon its properties, revenues or assets, whether now owned
or hereafter acquired, or the ability of the Borrower to amend or
otherwise modify this Agreement or any other Loan Document; or
(b) the ability of any Material Subsidiary to make any payments,
directly or indirectly, to the Borrower by way of distributions,
advances, repayments of loans or advances, reimbursements of
management and other intercompany charges, expenses and accruals
or other returns on investments, or any other agreement or
arrangement which restricts the ability of any such Subsidiary to
make any payment, directly or indirectly, to the Borrower.
SECTION VII.2.14. ERISA. Neither the Borrower nor any
ERISA Affiliate shall maintain or contribute to any Plan without
obtaining prior written consent of the Required Lenders unless
such Plan is a Pension Plan and is maintained in a manner that
could not reasonably be expected to give rise to an Event of
Default pursuant to Section 8.1.7.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION VIII.1. Listing of Events of Default. Each of the
following events or occurrences described in this Section 8.1
shall constitute an "Event of Default".
SECTION VIII.1.1. Non-Payment of Obligations. The
Borrower shall default in the payment or prepayment when due of
any principal of any Loan, or the Borrower shall default (and
such default shall continue unremedied for a period of five
Business Days) in the payment of interest when due on any Loan,
or in the payment when due of any commitment fee or of any other
Obligation.
SECTION VIII.1.2. Breach of Warranty. Any
representation or warranty of the Borrower or the Intermediate
Partnership made or deemed to be made hereunder or in any other
Loan Document or any other writing or certificate furnished by or
on behalf of the Borrower or Intermediate Partnership to the
Agent or any Lender for the purposes of or in connection with
this Agreement or any such other Loan Document (including any
certificates delivered pursuant to Article V) is or shall be
incorrect when made in any material respect.
SECTION VIII.1.3. Non-Performance of Certain Covenants
and Obligations. The Borrower shall default in the due
performance and observance of any of its obligations under
Section 7.2 or Section 7.1.8. Any General Partner shall default
in the due performance and observation of its obligations set
forth in Section 7.1.9, 7.2.8 or 7.2.11.
SECTION VIII.1.4. Non-Performance of Other Covenants and
Obligations. The Borrower shall default in the due performance
and observance of any other agreement contained herein or in any
other Loan Document, and such default shall continue unremedied
for a period of 30 days after notice thereof shall have been
given to the Borrower by the Agent or any Lender.
SECTION VIII.1.5. Default on Other Indebtedness. A
default shall occur in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise,
of any Indebtedness (other than Indebtedness described in Section
8.1.1) of the Borrower or any of its Subsidiaries having a
principal amount, individually or in the aggregate, in excess of
$15,000,000, or a default shall occur in the performance or
observance of any obligation or condition with respect to such
Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue
unremedied for any applicable period of time sufficient to permit
the holder or holders of such Indebtedness, or any trustee or
agent for such holders, to cause such Indebtedness to become due
and payable prior to its expressed maturity.
SECTION VIII.1.6. Judgments. Any judgment or order for
the payment of money in excess of $5,000,000 shall be rendered
against the Borrower or any of its Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or (b) there shall be any
period of 10 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
SECTION VIII.1.7. Pension Plans. Any of the following
events shall occur with respect to any Pension Plan (a) the
institution of any steps by the Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the Borrower or any such
member could be required to make a contribution to such Pension
Plan, or could reasonably expect to incur a liability or
obligation to such Pension Plan, in excess of $10,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of
ERISA.
SECTION VIII.1.8. Control of the Borrower, etc. Any
Change in Control shall occur, or any of the Borrower, the
Intermediate Partnership or NBPC shall (a) be dissolved for any
reason other than a withdrawal or removal of a General Partner or
(b) be dissolved by reason of the withdrawal or removal of a
General Partner and (i) such partnership shall have begun the
process of winding up and liquidating or (ii) the remaining
partners of such partnership shall not have taken all necessary
action and made all necessary filings required to continue the
business of the partnership pursuant to the terms of its
partnership agreement and applicable law and delivered to the
Agent such agreements, ratifications, certificates and opinions
and other documents as the Agent may reasonably request with
respect to such continuation, all in form and substance
satisfactory to the Agent, within the ninety day period
immediately following the date of such dissolution.
SECTION VIII.1.9. Bankruptcy, Insolvency, etc. The
Borrower, any of its Material Subsidiaries or NBPC shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they
become due; (b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or other
custodian for the Borrower, any of its Material Subsidiaries, or
NBPC or any property of any thereof, or make a general assignment
for the benefit of creditors; (c) in the absence of such
application, consent or acquiescence, permit or suffer to exist
the appointment of a trustee, receiver, sequestrator or other
custodian for the Borrower, any of its Material Subsidiaries or
NBPC or for a substantial part of the property of any thereof,
and such trustee, receiver, sequestrator or other custodian shall
not be discharged within 60 days, provided that the Borrower,
each Material Subsidiary and NBPC hereby expressly authorizes the
Agent and each Lender to appear in any court conducting any
relevant proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower,
any of its Material Subsidiaries or NBPC and, if any such case or
proceeding is not commenced by the Borrower, such Material
Subsidiary or NBPC, such case or proceeding shall be consented to
or acquiesced in by the Borrower, such Material Subsidiary or
NBPC, as the case may be, or shall result in the entry of an
order for relief or shall remain for 60 days undismissed,
provided that the Borrower, each Material Subsidiary and NBPC
hereby expressly authorizes the Agent and each Lender to appear
in any court conducting any such case or proceeding during such
60-day period to preserve, protect and defend their rights under
the Loan Documents; or (e) take any action authorizing, or in
furtherance of, any of the foregoing.
SECTION VIII.1.10. Payment Default by NBPC. Notice shall
have been delivered to the Borrower or the Borrower otherwise
knows of a default by NBPC in the payment when due (subject to
any applicable grace period), whether by acceleration or
otherwise, of any Indebtedness for borrowed money of NBPC having
a principal amount in the aggregate in excess of $15,000,000 and
such payment default shall not have been cured.
SECTION VIII.1.11. Operator. Except for a change in the
Operator permitted pursuant to Section 7.2.11 of this Agreement,
the Operator for NBPC shall have changed.
SECTION VIII.1.12. Guaranty Event of Default. A Guaranty
Event of Default shall have occurred and be continuing.
SECTION VIII.2. Action if Bankruptcy. If any Event of
Default described in clauses (a) through (d) of Section 8.1.9
shall occur, the Commitments (if not theretofore terminated)
shall automatically terminate and the outstanding principal
amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without
notice or demand.
SECTION VIII.3. Action if Other Event of Default. If any
Event of Default (other than any Event of Default described in
clauses (a) through (d) of Section 8.1.9) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the
Agent, upon the direction of the Required Lenders, shall by
notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations
to be due and payable and/or the Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of
such Loans and other Obligations which shall be so declared due
and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the
case may be, the Commitments shall terminate.
ARTICLE IX
THE AGENT
SECTION IX.1. Actions. Each Lender hereby appoints CIBC
as its Agent under and for purposes of this Agreement, the Notes
and each other Loan Document. Each Lender authorizes the Agent
to act on behalf of such Lender under this Agreement, the Notes
and each other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time
by the Agent (with respect to which the Agent agrees that it will
comply, except as otherwise provided in this Section or as
otherwise advised by counsel), to exercise such powers hereunder
and thereunder as are specifically delegated to or required of
the Agent by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender
hereby indemnifies (which indemnity shall survive any termination
of this Agreement) the Agent, pro rata according to such Lender's
Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, the Agent in any way relating
to or arising out of this Agreement, the Notes and any other Loan
Document, including reasonable attorneys' fees, and as to which
the Agent is not reimbursed by the Borrower; provided, however,
that no Lender shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, claims, costs or
expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from
the Agent's gross negligence or wilful misconduct. The Agent
shall not be required to take any action hereunder, under the
Notes or under any other Loan Document, or to prosecute or defend
any suit in respect of this Agreement, the Notes or any other
Loan Document, unless it is indemnified hereunder to its
satisfaction. If any indemnity in favor of the Agent shall be or
become, in the Agent's determination, inadequate, the Agent may
call for additional indemnification from the Lenders and cease to
do the acts indemnified against hereunder until such additional
indemnity is given.
SECTION IX.2. Funding Reliance, etc. Unless the Agent
shall have been notified by telephone, confirmed in writing, by
any Lender by 5:00 p.m., New York, New York time, on the day
prior to a Borrowing that such Lender will not make available the
amount which would constitute its Percentage of such Borrowing on
the date specified therefor, the Agent may assume that such
Lender has made such amount available to the Agent and, in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If and to the extent that such Lender
shall not have made such amount available to the Agent, such
Lender and the Borrower severally agree to repay the Agent
forthwith on demand such corresponding amount together with
interest thereon, for each day from the date the Agent made such
amount available to the Borrower to the date such amount is
repaid to the Agent. With respect to the Borrower, such interest
shall accrue at the interest rate applicable at the time to Loans
comprising such Borrowing as set forth in this Agreement. As to
any Lender, such interest shall accrue for the first three days
at the Federal Funds Rate and thereafter at the interest rate
applicable at the time to Loans comprising such Borrowing.
SECTION IX.3. Exculpation. Neither the Agent nor any of
its directors, officers, employees or agents shall be liable to
any Lender for any action taken or omitted to be taken by it
under this Agreement or any other Loan Document, or in connection
herewith or therewith, except for its own wilful misconduct or
gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan
Document, nor to make any inquiry respecting the performance by
the Borrower of its obligations hereunder or under any other Loan
Document. Any such inquiry which may be made by the Agent shall
not obligate it to make any further inquiry or to take any
action. The Agent shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which the Agent believes to be
genuine and to have been presented by a proper Person.
SECTION IX.4. Successor. The Agent may resign as such at
any time upon at least 30 days' prior notice to the Borrower and
all Lenders. If the Agent at any time shall resign, the Required
Lenders may, with the consent of the Borrower which consent shall
not be unreasonably withheld or delayed, appoint another Lender
as a successor Agent which shall thereupon become the Agent
hereunder. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving notice of
resignation, then the retiring Agent may, with the consent of the
Borrower, which consent shall not be unreasonably withheld or
delayed, on behalf of the Lenders, appoint a successor Agent,
which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State
thereof) or a U.S. branch or agency of a commercial banking
institution, and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall
be entitled to receive from the retiring Agent such documents of
transfer and assignment as such successor Agent may reasonably
request, and shall thereupon succeed to and become vested with
all rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's
resignation hereunder as the Agent, the provisions of (a) this
Article IX shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Agent under this
Agreement; and (b) Section 10.3 and Section 10.4 shall continue
to inure to its benefit.
SECTION IX.5. Loans by CIBC. CIBC shall have the same
rights and powers with respect to (x) the Loans made by it or any
of its Affiliates, and (y) the Notes held by it or any of its
Affiliates as any other Lender and may exercise the same as if it
were not the Agent. CIBC and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of business
with the Borrower or any Subsidiary or Affiliate of the Borrower
as if CIBC were not the Agent hereunder.
SECTION IX.6. Credit Decisions. Each Lender acknowledges
that it has, independently of the Agent and each other Lender,
and based on such Lender's review of the financial information of
the Borrower, this Agreement, the other Loan Documents (the terms
and provisions of which being satisfactory to such Lender) and
such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to
extend its Commitments. Each Lender also acknowledges that it
will, independently of the Agent and each other Lender, and based
on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own
credit decisions as to exercising or not exercising from time to
time any rights and privileges available to it under this
Agreement or any other Loan Document.
SECTION IX.7. Copies, etc. The Agent shall give prompt
notice to each Lender of each notice or request required or
permitted to be given to the Agent by the Borrower pursuant to
the terms of this Agreement (unless concurrently delivered to the
Lenders by the Borrower). The Agent will distribute to each
Lender each document or instrument received for its account and
copies of all other communications received by the Agent from the
Borrower for distribution to the Lenders by the Agent in
accordance with the terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION X.1. Waivers, Amendments, etc. The provisions
of this Agreement and of each other Loan Document may from time
to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the
Borrower and the Required Lenders; provided, however, that no
such amendment, modification or waiver which would: (a) modify
any requirement hereunder that any particular action be taken by
all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender; (b) modify this Section 10.1,
change the definition of "Required Lenders", increase any
Commitment Amount or the Percentage of any Lender, reduce any
fees described in Article III, extend any Commitment Termination
Date, release (in whole or in part) or terminate the Guaranty, or
permit the assignment of the Guaranty shall be made without the
consent of each Lender and each holder of a Note; (c) extend the
due date for, or reduce the amount of, any scheduled repayment or
prepayment of principal of or interest on any Loan (or reduce
the principal amount of or rate of interest on any Loan) shall be
made without the consent of the holder of that Note evidencing
such Loan; or (d) affect adversely the interests, rights or
obligations of the Agent in its capacity as the Agent shall be
made without consent of the Agent. No failure or delay on the
part of the Agent, any Lender or the holder of any Note in
exercising any power or right under this Agreement or any other
Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude
any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Borrower in
any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by the Agent, any
Lender or the holder of any Note under this Agreement or any
other Loan Document shall, except as may be otherwise stated in
such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION X.2. Notices. All notices and other
communications provided to any party hereto under this Agreement
or any other Loan Document shall be in writing or by facsimile
and addressed, delivered or transmitted to such party at its
address or facsimile number set forth below its signature hereto
or set forth in the Lender Assignment Agreement or at such other
address or facsimile number as may be designated by such party in
a notice to the other parties. Any notice, if mailed and
properly addressed with postage prepaid or if properly addressed
and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be
deemed given when transmitted.
SECTION X.3. Payment of Costs and Expenses. The
Borrower agrees to pay on demand all reasonable expenses of the
Agent (including the fees and out-of-pocket expenses of counsel
to the Agent and of local counsel, if any, who may be retained by
counsel to the Agent) in connection with the negotiation,
preparation, execution and delivery of this Agreement and of each
other Loan Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other modifications
to this Agreement or any other Loan Document as may from time to
time hereafter be required, whether or not the transactions
contemplated hereby are consummated, the preparation and review
of the form of any document or instrument relevant to this
Agreement or any other Loan Document. The Borrower further
agrees to pay, and to save the Agent and the Lenders harmless
from all liability for, any stamp or other taxes which may be
payable in connection with the execution or delivery of this
Agreement, the borrowings hereunder, or the issuance of the Notes
or any other Loan Documents. The Borrower also agrees to
reimburse the Agent and each Lender upon demand for all
reasonable out-of-pocket expenses (including attorneys' fees and
legal expenses) incurred by the Agent or such Lender in
connection with (x) the negotiation of any restructuring or "work-
out", whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION X.4. Indemnification. In consideration of the
execution and delivery of this Agreement by each Lender and the
extension of the Commitments, the Borrower hereby indemnifies,
exonerates and holds the Agent and each Lender and each of their
respective officers, directors, employees and agents
(collectively, the "Indemnified Parties") free and harmless from
and against any and all actions, causes of action, suits, losses,
costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to (a) any
transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan; (b) any
investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not the Agent or such Lender is party thereto;
(c) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating
to the protection of the environment or the release (as defined
in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended) by the Borrower or any of its
Subsidiaries of any Hazardous Material; or (d) the presence on or
under, or the escape, seepage, leakage, spillage, discharge,
emission, discharging or releases from, any real property owned
or operated by the Borrower or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within
the control of, the Borrower or such Subsidiary, except for any
such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant
Indemnified Party's gross negligence or wilful misconduct. If
and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under
applicable law.
SECTION X.5. Survival. The obligations of the Borrower
under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the
obligations of the Lenders under Section 9.1, shall in each case
survive any termination of this Agreement, the payment in full of
all Obligations and the termination of all Commitments. The
representations and warranties made by the Borrower in this
Agreement and in each other Loan Document shall survive the
execution and delivery of this Agreement and each such other Loan
Document.
SECTION X.6. Severability. Any provision of this
Agreement or any other Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Loan Document or
affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION X.7. Headings. The various headings of this
Agreement and of each other Loan Document are inserted for
convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION X.8. Execution in Counterparts, Effectiveness,
etc. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be executed by the
Borrower and the Agent and be deemed to be an original and all of
which shall constitute together but one and the same agreement.
This Agreement shall become effective when counterparts hereof
executed on behalf of the Borrower and each Lender (or notice
thereof satisfactory to the Agent) shall have been received by
the Agent and notice thereof shall have been given by the Agent
to the Borrower and each Lender.
SECTION X.9. Governing Law; Entire Agreement. THIS
AGREEMENT, THE NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK. This Agreement, the Notes and the
other Loan Documents constitute the entire understanding among
the parties hereto with respect to the subject matter hereof and
supersede any prior agreements, written or oral, with respect
thereto.
SECTION X.10. Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns;
provided, however, that: (a) the Borrower may not assign or
transfer its rights or obligations hereunder without the prior
written consent of the Agent and all Lenders; and (b) the rights
of sale, assignment and transfer of the Lenders are subject to
Section 10.11.
SECTION X.11. Sale and Transfer of Loans and Notes;
Participations in Loans and Notes. Each Lender may assign, or
sell participations in, its Loans and Commitments to one or more
other Persons in accordance with this Section 10.11.
SECTION X.11.1. Assignments. Any Lender, (a) with the
written consents of the Borrower and the Agent (which consents
shall not be unreasonably delayed or withheld and which consent,
in the case of the Borrower, shall be deemed to have been given
in the absence of a written notice delivered by the Borrower to
the Agent, on or before the fifth Business Day after receipt by
the Borrower of such Lender's request for consent, stating, in
reasonable detail, the reasons why the Borrower proposes to
withhold such consent) may at any time assign and delegate to one
or more commercial banks or other financial institutions in a
minimum amount equal to $10,000,000 or, if less, its total Loans
and Commitments, and (b) with notice to the Borrower and the
Agent, but without the consent of the Borrower or the Agent, may
assign and delegate to any of its Affiliates or to any other
Lender (each Person described in either of the foregoing clauses
as being the Person to whom such assignment and delegation is to
be made, being hereinafter referred to as an "Assignee Lender"),
all or any fraction of such Lender's total Loans and Commitments
(which assignment and delegation shall in each case be of a
constant, and not a varying, percentage of all the assigning
Lender's Loans and Commitments); provided, however, that any such
Assignee Lender will comply, if applicable, with the provisions
contained in the last sentence of Section 4.6 and further,
provided, however, that, the Borrower and the Agent shall be
entitled to continue to deal solely and directly with such Lender
in connection with the interests so assigned and delegated to an
Assignee Lender until (c) written notice of such assignment and
delegation, together with payment instructions, addresses and
related information with respect to such Assignee Lender, shall
have been given to the Borrower and the Agent by such Lender and
such Assignee Lender, (d) such Assignee Lender shall have
executed and delivered to the Borrower and the Agent a Lender
Assignment Agreement, accepted by the Agent, and (e) the
processing fees described below shall have been paid. From and
after the date that the Agent accepts such Lender Assignment
Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent
that rights and obligations hereunder have been assigned and
delegated to such Assignee Lender in connection with such Lender
Assignment Agreement, shall have the rights and obligations of a
Lender hereunder and under the other Loan Documents, and (y) the
assignor Lender, to the extent that rights and obligations
hereunder have been assigned and delegated by it in connection
with such Lender Assignment Agreement, shall be released from its
obligations hereunder and under the other Loan Documents. Within
five Business Days after its receipt of notice that the Agent has
received an executed Lender Assignment Agreement, the Borrower
shall execute and deliver to the Agent (for delivery to the
relevant Assignee Lender) new Notes evidencing such Assignee
Lender's assigned Loans and Commitments and, if the assignor
Lender has retained Loans and Commitments hereunder, replacement
Notes in the principal amount of the Loans and Commitments
retained by the assignor Lender hereunder (such Notes to be in
exchange for, but not in payment of, those Notes then held by
such assignor Lender). Each such Note shall be dated the date of
the predecessor Notes. The assignor Lender shall ▇▇▇▇ the
predecessor Notes "exchanged" and deliver them to the Borrower.
Accrued interest on that part of the predecessor Notes evidenced
by the new Notes, and accrued fees, shall be paid as provided in
the Lender Assignment Agreement. Accrued interest on that part
of the predecessor Notes evidenced by the replacement Notes shall
be paid to the assignor Lender. Accrued interest and accrued
fees shall be paid at the same time or times provided in the
predecessor Notes and in this Agreement. Such assignor Lender or
such Assignee Lender must also pay a processing fee to the Agent
upon delivery of any Lender Assignment Agreement in the amount of
$3,000. Any attempted assignment and delegation not made in
accordance with this Section 10.11.1 shall be null and void.
SECTION X.11.2. Participations. Any Lender may at any time
sell to one or more commercial banks or other Persons (each of
such commercial banks and other Persons being herein called a
"Participant") participating interests in any of the Loans,
Commitments, or other interests of such Lender hereunder;
provided, however, that (a) no participation contemplated in this
Section 10.11 shall relieve such Lender from its Commitments or
its other obligations hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations,
(c) the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and each of the other Loan
Documents, (d) no Participant, unless such Participant is an
Affiliate of such Lender, or is itself a Lender, shall be
entitled to require such Lender to take or refrain from taking
any action hereunder or under any other Loan Document, except
that such Lender may agree with any Participant that such Lender
will not, without such Participant's consent, take any actions of
the type described in clause (b) or (c) of Section 10.1, and
(e) the Borrower shall not be required to pay any amount under
Sections 4.3, 4.4, 4.5 or 4.6 that is greater than the amount
which it would have been required to pay had no participating
interest been sold. The Borrower acknowledges and agrees that
each Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6,
4.10, 4.11, 10.3 and 10.4, shall be considered a Lender.
SECTION X.12. Other Transactions. Nothing contained
herein shall preclude the Agent or any other Lender from engaging
in any transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of
its Affiliates in which the Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.
SECTION X.13. No General Partners' Liability. The
Lenders agree for themselves and their respective successors and
assigns, including any subsequent holder of any Note, that any
claim against the Borrower which may arise under any Loan
Document shall be made only against and shall be limited to the
assets of the Borrower, except to the extent the Intermediate
Partnership may have obligations with respect to such claim
pursuant to the terms of the Guaranty, and that no judgment,
order or execution entered in any suit, action or proceeding,
whether legal or equitable, on this Agreement, such Note or any
of the other Loan Documents shall be obtained or enforced against
any General Partner or its assets for the purpose of obtaining
satisfaction and payment of such Note, the Indebtedness evidenced
thereby or any claims arising thereunder or under this Agreement
or any other Loan Document, any right to proceed against the
General Partners individually or their respective assets being
hereby expressly waived, renounced and remitted by the Lenders
for themselves and their respective successor and assigns.
Nothing in this Section 10.13, however, shall be construed so as
to prevent the Agent, any Lender or any other holder of any Note
from commencing any action, suit or proceeding with respect to or
causing legal papers to be served upon any General Partner for
the purpose of obtaining jurisdiction over the Borrower.
SECTION X.14. Forum Selection and Consent to
Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS
OR THE BORROWER MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF
THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY
MAY BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE.
THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES
SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
SECTION X.15. Notice. THIS WRITTEN AGREEMENT TOGETHER
WITH THE OTHER LOAN DOCUMENTS REPRESENTS THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
NORTHERN BORDER PARTNERS, L.P.
By:
Title:
Address:
Facsimile No.:
Attention:
CANADIAN IMPERIAL BANK OF COMMERCE,
acting through its U.S. branches
and agencies, as Agent
By:
Title:
Address:
Facsimile No.:
Attention:
With respect to Sections 7.1.9,
7.2.8 and 7.2.11 only:
NORTHERN PLAINS NATURAL GAS COMPANY
By:
Title:
Address:
Facsimile No.:
Attention:
With respect to Sections 7.1.9,
7.2.8 and 7.2.11 only:
PAN BORDER GAS COMPANY
By:
Title:
Address:
Facsimile No.:
Attention:
With respect to Sections 7.1.9,
7.2.8 and 7.2.11 only:
NORTHWEST BORDER PIPELINE COMPANY
By:
Title:
Address:
Facsimile No.:
Attention:
PERCENTAGE LENDERS
CIBC INC.
28.571428571%
By:
Title:
Domestic
Office: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.:(▇▇▇) ▇▇▇-▇▇▇▇
Attention: Syndication Manager
Operations
LIBOR
Office: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.:(▇▇▇) ▇▇▇-▇▇▇▇
Attention: Syndication Manager
Operations
BANK OF MONTREAL IRELAND plc
14.▇▇▇▇▇▇▇▇▇%
By:
Title:
LIBOR
Office: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇/▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Facsimile No.: 011-353-1-6629301
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Domestic
Contact: ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
TORONTO DOMINION (TEXAS), INC.
14.285714285%
By:
Title:
Domestic
Office: ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 713/951-9921
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
LIBOR
Office: ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 713/951-9921
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
8.571428571%
By:
Title:
Domestic
Office: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: May ▇▇▇▇▇▇
LIBOR
Office: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: May ▇▇▇▇▇▇
With a
Copy to: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
DEN NORSKE BANK ASA
8.571428571%
By:
Title:
By:
Title:
Domestic
Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ______________
LIBOR
Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ______________
ROYAL BANK OF CANADA
8.▇▇▇▇▇▇▇▇▇%
By:
Title:
Domestic
Office: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone No.: 212/▇▇▇-▇▇▇▇
Facsimile No.: 212/428-2372
Attention: Assistant Manager,
Loan Processing
With a
copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
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Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇.▇. (▇▇▇▇) ▇▇▇▇▇
LIBOR
Office: Financial Square
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Telephone No.: 212/▇▇▇-▇▇▇▇
Facsimile No.: 212/428-2372
Attention: Assistant Manager,
Loan Processing
With a
copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
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Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇.▇. (▇▇▇▇) ▇▇▇▇▇
THE SANWA BANK, LIMITED
8.571428571%
By:
Title:
Domestic
Office: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
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Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ______________
LIBOR
Office: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ______________
THE FIRST NATIONAL BANK OF CHICAGO
8.571428571%
By:
Title:
Domestic
Office: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: _______________
Attention: ______________
LIBOR
Office: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: _______________
Attention: ______________
___________
100%
with a copy to:
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Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ______________
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 6.7 Litigation.
Description of Proceeding Action or Claim Sought
ITEM 6.12 Environmental Matters.
ITEM 7.2.4(a) Ongoing Investments.
EXHIBIT A
REVOLVING NOTE
$___________ November 6, 1997
FOR VALUE RECEIVED, the undersigned, NORTHERN BORDER
PARTNERS, L.P., a Delaware limited partnership (the "Borrower"),
promises to pay to the order of ______________________ (the
"Lender") on the Stated Maturity Date (as defined in the Credit
Agreement referenced below) the principal sum of
__________________ DOLLARS ($___________) or, if less, the
aggregate unpaid principal amount of all Loans shown on the
schedule attached hereto (and any continuation thereof) made by
the Lender pursuant to that certain Credit Agreement, dated as of
November 6, 1997 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto,
the "Credit Agreement"), among the Borrower, CANADIAN IMPERIAL
BANK OF COMMERCE, as Agent, and the various financial
institutions (including the Lender) as are, or may from time to
time become, parties thereto.
The Borrower also promises to pay interest on the unpaid
principal amount hereof from time to time outstanding from the
date hereof until maturity (whether by acceleration or otherwise)
and, after maturity, until paid, at the rates per annum and on
the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in
lawful money of the United States of America in same day or
immediately available funds to the account designated by the
Agent pursuant to the Credit Agreement.
This Note is one of the Revolving Notes referred to in, and
evidences Indebtedness incurred under, the Credit Agreement, to
which reference is made for statement of the terms and conditions
on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness
evidenced by this Note and on which such Indebtedness may be
declared to be immediately due and payable. Unless otherwise
defined, terms used herein have the meanings provided in the
Credit Agreement.
All parties hereto, whether as makers, endorsers, or
otherwise, severally waive presentment for payment, demand,
protest and notice of dishonor.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
NORTHERN BORDER PARTNERS, L.P.
By_____________________________
Title:
REVOLVING LOANS AND PRINCIPAL PAYMENTS
Amount of Amount of Unpaid
Revolving Principal Principal
Loan Made Repaid Balance
Interest
Base LIBO Period (if Base LIBO Base LIBO Notation
Date Rate Rate applicable) Rate Rate Rate Rate Total Made By
EXHIBIT B
BORROWING REQUEST
Canadian Imperial Bank of Commerce
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ _________
Attention: Syndication Manager
Operations
NORTHERN BORDER PARTNERS, L.P.
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to
Section 2.3 of the Credit Agreement, dated as of November 6, 1997
(together with all amendments, if any, from time to time made
thereto, the "Credit Agreement"), among NORTHERN BORDER PARTNERS,
L.P., a Delaware limited partnership (the "Borrower"), certain
financial institutions and Canadian Imperial Bank of Commerce
(the "Agent"). Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
The Borrower hereby requests that a Loan be made in the
aggregate principal amount of $__________ on __________, [19]___
as a [LIBO Rate Loan having an Interest Period of _______ months]
[Base Rate Loan].
The Borrower hereby acknowledges that, pursuant to Section
5.2.3 of the Credit Agreement, each of the delivery of this
Borrowing Request and the acceptance by the Borrower of the
proceeds of the Loans requested hereby constitute a
representation and warranty by the Borrower that, on the date of
such Loans, and before and after giving effect thereto and to the
application of the proceeds therefrom, all statements set forth
in Section 5.2.1 are true and correct in all material respects.
The Borrower agrees that if prior to the time of the
Borrowing requested hereby any matter certified to herein by it
will not be true and correct at such time as if then made, it
will immediately so notify the Agent. Except to the extent, if
any, that prior to the time of the Borrowing requested hereby the
Agent shall receive written notice to the contrary from the
Borrower, each matter certified to herein shall be deemed once
again to be certified as true and correct at the date of such
Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the
accounts of the following persons at the financial institutions
indicated respectively:
Amount to be Person to be Paid Name, Address, etc.
Transferred Name Account No. of Transferee Lender
$___________ ____________ __________ ____________________
____________________
Attention: _________
$___________ ____________ ___________ ____________________
____________________
Attention: _________
Balance of The Borrower ___________ ____________________
such proceeds ____________________
Attention: _________
The Borrower has caused this Borrowing Request to be
executed and delivered, and the certification and warranties
contained herein to be made, by its duly Authorized
Representative this ___ day of ___________, [199]_.
NORTHERN BORDER PARTNERS, L.P.
By
Title:
EXHIBIT C
CONTINUATION/CONVERSION NOTICE
Canadian Imperial Bank of Commerce
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Syndication Manager
Operations
NORTHERN BORDER PARTNERS, L.P.
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you
pursuant to Section 2.4 of the Credit Agreement, dated as of
November 6, 1997 (together with all amendments, if any, from time
to time made thereto, the "Credit Agreement"), among NORTHERN
BORDER PARTNERS, L.P., a Delaware limited partnership (the
"Borrower"), certain financial institutions and CANADIAN IMPERIAL
BANK OF COMMERCE (the "Agent"). Unless otherwise defined herein
or the context otherwise requires, terms used herein have the
meanings provided in the Credit Agreement.
The Borrower hereby requests that on ____________, [19]___,
(1) $___________ of the presently outstanding
principal amount of the Loans originally made on __________,
[19]___ and Loans originally made on __________, [19]___,
(2) and all presently being maintained as *[Base Rate
Loans] [LIBO Rate Loans],
(3) be [converted into] [continued as],
(4) [LIBO Rate Loans having an Interest Period of
______ months] [Base Rate Loans].
The Borrower hereby:
(a) certifies and warrants that no Default has
occurred and is continuing; and
(b) agrees that if prior to the time of such
continuation or conversion any matter certified to herein by
it will not be true and correct at such time as if then
made, it will immediately so notify the Agent.
______________
* Select appropriate interest rate option.
Except to the extent, if any, that prior to the time of the
continuation or conversion requested hereby the Agent shall
receive written notice to the contrary from the Borrower, each
matter certified to herein shall be deemed to be certified at the
date of such continuation or conversion as if then made.
The Borrower has caused this Continuation/Conversion Notice
to be executed and delivered, and the certification and
warranties contained herein to be made, by its Authorized
Representative this ___ day of _________, [19]___.
NORTHERN BORDER PARTNERS, L.P.
By
Title:
EXHIBIT D
LENDER ASSIGNMENT AGREEMENT
To: NORTHERN BORDER PARTNERS, L.P.
To: CANADIAN IMPERIAL BANK OF COMMERCE
as the Agent
NORTHERN BORDER PARTNERS, L.P.
Gentlemen and Ladies:
We refer to clause (d) of Section 10.11.1 of the Credit
Agreement, dated as of November 6, 1997 (together with all
amendments and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among NORTHERN
BORDER PARTNERS, L.P., a Delaware limited partnership (the
"Borrower"), the various financial institutions (the "Lenders")
as are, or shall from time to time become, parties thereto, and
CANADIAN IMPERIAL BANK OF COMMERCE, as agent (the "Agent") for
the Lenders. Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
This agreement is delivered to you pursuant to clause (d) of
Section 10.11.1 of the Credit Agreement and also constitutes
notice to each of you, pursuant to clause (c) of Section 10.11.1
of the Credit Agreement, of the assignment and delegation to
_______________ (the "Assignee") of ___% of the Loans and
Commitments of _____________ (the "Assignor") outstanding under
the Credit Agreement on the date hereof. After giving effect to
the foregoing assignment and delegation, the Assignor's and the
Assignee's Percentages for the purposes of the Credit Agreement
are set forth opposite such Person's name on the signature pages
hereof.
[Add paragraph dealing with accrued interest and fees with
respect to Loans assigned.]
The Assignee hereby acknowledges and confirms that it has
received a copy of the Credit Agreement and the exhibits related
thereto, together with copies of the documents which were
required to be delivered under the Credit Agreement as a
condition to the making of the Loans thereunder. The Assignee
further confirms and agrees that in becoming a Lender and in
making its Commitments and Loans under the Credit Agreement, such
actions have and will be made without recourse to, or
representation or warranty by the Agent.
Except as otherwise provided in the Credit Agreement,
effective as of the date of acceptance hereof by the Agent
(a) the Assignee (ii) shall be deemed automatically to have
become a party to the Credit Agreement, have all the rights and
obligations of a "Lender" under the Credit Agreement and the
other Loan Documents as if it were an original signatory thereto
to the extent specified in the second paragraph hereof; and
(iii) agrees to be bound by the terms and conditions set forth in
the Credit Agreement and the other Loan Documents as if it were
an original signatory thereto; and (b) the Assignor shall be
released from its obligations under the Credit Agreement and the
other Loan Documents to the extent specified in the second
paragraph hereof.
The Assignor and the Assignee hereby agree that the
[Assignor] [Assignee] will pay to the Agent the processing fee
referred to in Section 10.11.1 of the Credit Agreement upon the
delivery hereof.
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned Loans and
Commitments and requests the Agent to acknowledge receipt of this
document:
(A) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
LIBOR Office:
Telephone:
Facsimile:
(B) Payment Instructions:
The Assignee agrees to furnish the tax form required by the
second to last sentence of Section 4.6 (if so required) of the
Credit Agreement no later than the date of acceptance hereof by
the Agent.
This Agreement may be executed by the Assignor and Assignee
in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Adjusted Percentage [ASSIGNOR]
Term Loan Commitment
and
Term Loans: __%
Loan
Commitment
and
Loans: __%
By:_______________________
Title:
Percentage [ASSIGNEE]
Term Loan Commitment
and
Term Loans: __%
Loan
Commitment
and
Loans: __%
By:_______________________
Title:
Accepted and Acknowledged
this __ day of _______, [19]__
__________________________,
as Agent
By:________________________
Title:
EXHIBIT E-1
[Form of Opinion of Counsel to the Borrower]
EXHIBIT E-2
[Form of Opinion of Counsel to Northern Plains
Natural Gas Company as General Partner of the Borrower]
EXHIBIT E-3
[Form of Opinion of Counsel to Each General Partner]
EXHIBIT F
[Form of Guaranty]
Table of Contents
Page
I DEFINITIONS AND ACCOUNTING TERMS 2
1.1. Defined Terms 2
1.2. Use of Defined Terms 16
1.3. Cross-References 16
1.4. Accounting and Financial Determinations 16
II COMMITMENTS, BORROWING PROCEDURES AND NOTES 16
2.1. Commitments 16
2.1.1. Loan Commitment 16
2.1.2. Lenders Not Permitted or Required
To Make Loans 17
2.2. Reduction of Commitment Amount 17
2.3. Borrowing Procedure 18
2.4. Continuation and Conversion Elections 18
2.5. Funding 18
2.6. Notes 19
III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES 19
3.1. Repayments and Prepayments 19
3.2. Interest Provisions 20
3.2.1. Rates 20
3.2.2. Post-Maturity Rates 21
3.2.3. Payment Dates 21
3.3. Fees 22
3.3.1. Commitment Fee 22
3.3.2. Upfront Fee 22
3.3.3. Agent's Fee 22
IV CERTAIN LIBO RATE AND OTHER PROVISIONS 22
4.1. LIBO Rate Lending Unlawful 22
4.2. Deposits Unavailable 22
4.3. Increased LIBO Rate Loan Costs, etc. 23
4.4. Funding Losses 24
4.5. Increased Capital Costs 24
4.6. Taxes 25
4.7. Lender Statements; Survival of Indemnity. 26
4.8. Replacement of Lenders. 26
4.9. Payments, Computations, etc. 27
4.10. Sharing of Payments 28
4.11. Setoff 28
4.12. Use of Proceeds 29
V CONDITIONS TO BORROWING 29
5.1. Initial Borrowing 29
5.1.1. Resolutions, etc. 29
5.1.2. Delivery of Notes 30
5.1.3. Guaranty. 30
5.1.4. Opinions of Counsel 31
5.1.5. Closing Fees, Expenses, etc. 31
5.2. All Borrowings 31
5.2.1. Compliance with Warranties, No
Default, etc. 31
5.2.2. Material Adverse Change 31
5.2.3. Borrowing Request 32
5.2.4. Legal Matters 32
VI REPRESENTATIONS AND WARRANTIES 32
6.1. Organization, etc. 32
6.2. Due Authorization, Non-Contravention, etc. 32
6.3. Government Approval, Regulation, etc. 33
6.4. Validity, etc. 33
6.5. Financial Information 33
6.6. No Material Adverse Change 34
6.7. Litigation, Labor Controversies, etc. 34
6.8. Material Subsidiaries 34
6.9. Ownership of Properties 34
6.10. Taxes 34
6.11. ERISA Plans 35
6.12. Environmental Matters 35
6.13. Regulations G, U and X 35
6.14. Default 35
6.15. Accuracy of Information 36
VII COVENANTS 36
7.1. Affirmative Covenants 36
7.1.1. Financial Information, Reports,
Notices, etc. 36
7.1.2. Compliance with Laws, etc. 38
7.1.3. Maintenance of Properties 38
7.1.4. Insurance 39
7.1.5. Books and Records 39
7.1.6. [Reserved.] 39
7.1.7. Pari Passu Status 39
7.1.8. Maintenance of Tax Status 39
7.1.9. Obligations to Make Loans or
Purchase Units. 39
7.2. Negative Covenants 40
7.2.1. Indebtedness 40
7.2.2. Liens 41
7.2.3. Financial Condition 42
7.2.4. Investments 42
7.2.5. Payments to Limited Partnership
Units, etc. 43
7.2.6. Rental Obligations 44
7.2.7. Limitation on Business Activities 44
7.2.8. Consolidation, Merger, etc. 44
7.2.9. Issuance of Units. 45
7.2.10.Asset Dispositions, etc. 45
7.2.11.Modification of Certain Agreements 45
7.2.12.Transactions with Affiliates 46
7.2.13.Negative Pledges, Restrictive
Agreements, etc. 46
7.2.14.ERISA. 47
VIII EVENTS OF DEFAULT 47
8.1. Listing of Events of Default 47
8.1.1. Non-Payment of Obligations 47
8.1.2. Breach of Warranty 47
8.1.3. Non-Performance of Certain
Covenants and Obligations 47
8.1.4. Non-Performance of Other Covenants
and Obligations 47
8.1.5. Default on Other Indebtedness 48
8.1.6. Judgments 48
8.1.7. Pension Plans 48
8.1.8. Control of the Borrower, etc 48
8.1.9. Bankruptcy, Insolvency, etc. 49
8.1.10.Payment Default by NBPC. 49
8.1.11.Operator. 50
8.1.12.Guaranty Event of Default. 50
8.2. Action if Bankruptcy 50
8.3. Action if Other Event of Default 50
X THE AGENT 50
9.1. Actions 50
9.2. Funding Reliance, etc. 51
9.3. Exculpation 51
9.4. Successor 52
9.5. Loans by CIBC 52
9.6. Credit Decisions 53
9.7. Copies, etc. 53
X MISCELLANEOUS PROVISIONS 53
10.1. Waivers, Amendments, etc. 53
10.2. Notices 54
10.3. Payment of Costs and Expenses 54
10.4. Indemnification 55
10.5. Survival 56
10.6. Severability 56
10.7. Headings 56
10.8. Execution in Counterparts, Effectiveness, etc. 56
10.9. Governing Law; Entire Agreement 56
10.10. Successors and Assigns 57
10.11. Sale and Transfer of Loans and Notes;
Participations in Loans and Notes 57
10.11.1.Assignments 57
10.11.2.Participations 58
10.12. Other Transactions 59
10.13. No General Partners' Liability 59
10.14. Forum Selection and Consent to Jurisdiction 59
10.15. Notice 60
SCHEDULE I - Disclosure Schedule
EXHIBIT A - Form of Revolving Note
EXHIBIT B - Form of Borrowing Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E-1 - Form of Opinion of Counsel to the Borrower
EXHIBIT E-2 - Form of Opinion of Counsel to Northern
Plains Natural Gas Company as General Partner of
the Borrower
EXHIBIT E-3 - Form of Opinion of Counsel to Each
General Partner
EXHIBIT F - Form of Guaranty
