EXHIBIT 1.1
Northern Border Partners, L.P.
2,000,000
Common Units(1)
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
--------
(1) Plus an option to purchase up to 300,000 additional Common Units from
Northern Border Partners, L.P. to cover over-allotments.
UNDERWRITING AGREEMENT
New York, New York
June 26, 2002
UBS Warburg LLC
Xxxxxxx Xxxxx Xxxxxx Inc.
as Managing Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Northern Border Partners, L.P., a limited partnership
organized under the laws of Delaware (the "Partnership"), proposes to sell to
the underwriters named in Schedule A annexed hereto (the "Underwriters" or
"you") an aggregate of 2,000,000 Common Units ("Common Units") representing
limited partner interests in the Partnership (the "Firm Units"). In addition,
solely for the purpose of covering over-allotments, the Partnership proposes to
grant to the Underwriters the Option (as defined below) to purchase from the
Partnership up to an additional 300,000 Common Units (the "Additional Units").
The Firm Units and the Additional Units are hereinafter collectively sometimes
referred to as the "Units." The Units are described in the Final Prospectus
which is referred to below.
The term "Registration Statement" as used in this Agreement
shall mean such registration statement filed on Form S-3 (File No. 333-72323)
(including all financial schedules and exhibits), as amended when it became
effective, or, if such registration statement became effective prior to the
execution of this Agreement, as supplemented or amended prior to the execution
of this Agreement. If it is contemplated, at the time this Agreement is
executed, that a post-effective amendment to such registration statement will be
filed and must be declared effective before the offering of the Units may
commence, the term "Registration Statement" as used in this Agreement means such
registration statement as amended by said post-effective amendment. If it is
contemplated, at the time this Agreement is executed, that a registration
statement will be filed pursuant to Rule 462(b) under the Act (as defined below)
before the offering of the Units may commence, the term "Registration Statement"
as used in this Agreement includes such registration statement. The term "Basic
Prospectus" as used in this Agreement shall mean the prospectus contained in the
Registration Statement at the time that the Registration Statement was declared
effective or in the form in which it has been most recently filed with the
Commission (as defined below) on or prior to the date of this Agreement. The
term "Preliminary Prospectus" as used in this Agreement shall mean any
preliminary prospectus supplement relating to the Units and the offering
thereof, that has been filed with the Commission pursuant to Rule 424(b) under
the Act, together with the Basic Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Units and the offering thereof that is
first filed with the Commission pursuant to Rule 424(b) under the Act after the
date and time this Agreement is executed and delivered by the parties hereto,
together with the Basic Prospectus.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be; any
reference in this Agreement to the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act, as of the dates of the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus, as the
case may be; and any reference to any amendment or supplement to the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include any documents filed
after such date under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Exchange
Act") which, upon filing, are incorporated by reference therein, as required by
paragraph (b) of Item 12 of Form S-3. As used herein, the term "Incorporated
Documents" means the documents which at the time are incorporated by reference
in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus
or the Final Prospectus or any amendment or supplement thereto.
The Partnership and Northern Border Intermediate Limited
Partnership, a Delaware limited partnership (the "Intermediate Partnership"),
acting severally and jointly, confirm as follows their agreements with the
Underwriters:
1. Sale and Purchase. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Partnership agrees to sell to the respective Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Partnership
the aggregate number of Firm Units set forth opposite the name of such
Underwriter in Schedule A attached hereto in each case at a purchase price of
$33.99 per Common Unit. It is understood that the Underwriters propose to offer
the Units for sale to the public as set forth in the Final Prospectus.
In addition, the Partnership hereby grants to the several
Underwriters the option to purchase, and upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Partnership, ratably in accordance with the number of Firm Units to be
purchased by each of them, all or a portion of the Additional Units as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Units, at the same purchase price per unit to be paid by the Underwriters
to the Partnership for the Firm Units (the "Option"). This Option may be
exercised by you on behalf of the several Underwriters at any time and from time
to time on or before the thirtieth day following the date hereof, by written
notice to the Partnership. Such notice shall set forth the aggregate number of
Additional Units as to which the Option is being exercised, and the date and
time when the Additional Units are to be delivered (such date and time being
herein referred to as the "additional time of purchase"); provided, however,
that the additional time of purchase shall not be earlier than the time of
purchase (as defined below) nor earlier than the second business day(2) after
the date on which the Option shall
----------
(2) As used herein "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
-2-
have been exercised nor later than the tenth business day after the date on
which the Option shall have been exercised. The number of Additional Units to be
sold to each Underwriter shall be the number which bears the same proportion to
the aggregate number of Additional Units being purchased as the number of Firm
Units set forth opposite the name of such Underwriter on Schedule A hereto bears
to the total number of Firm Units (subject, in each case, to such adjustment as
you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the
Firm Units shall be made to the Partnership by Federal Funds wire transfer,
against delivery of the certificates for the Firm Units to you through the
facilities of The Depository Trust Company ("DTC") for the respective accounts
of the Underwriters. Such payment and delivery shall be made at 10:00 A.M., New
York City time, on July 1, 2002 (unless another time shall be agreed to in
writing by you and the Partnership or unless postponed in accordance with the
provisions of Section 8 hereof). The time at which such payment and delivery of
the Firm Units are actually made is hereinafter sometimes called the "time of
purchase." Electronic transfer of the Firm Units shall be made to you at the
time of purchase in such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Units shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Units. Electronic transfer of the Additional
Units shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
Deliveries of the documents described in Section 6 below with
respect to the purchase of the Units shall be made at the offices of Xxxxxx &
Xxxxxx L.L.P. at The Terrace 7, 0000 Xxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, at 10:00 A.M., New York City time, on the date of the closing of the
purchase of the Firm Units or the Additional Units, as the case may be.
3. Representations and Warranties. The Partnership and the
Intermediate Partnership, jointly and severally, represent and warrant to, and
agree with, the Underwriters as set forth below in this Section 3.
(a) The Partnership has prepared and filed, in
accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the
"Act") with the Securities and Exchange Commission (the "Commission"),
the Registration Statement, including a related Basic Prospectus
subject to completion relating to the Units, such Registration
Statement has been declared effective by the Commission, and no stop
order suspending the effectiveness of the Registration Statement has
been issued by the Commission. At the time of the filing of such
Registration Statement, the Partnership met the requirements for use of
Form S-3 under the Act. The Partnership may have filed one or more
amendments or supplements to such Registration Statement, including any
preliminary prospectus supplement which relates to such Basic
Prospectus and has previously been furnished to you. The Partnership
will next file with the Commission a Final Prospectus which relates to
such Basic Prospectus and includes the Basic Prospectus, in accordance
with Rules 430A and 424(b) under the Act. The Partnership has included
in such Registration Statement, as amended and supplemented on the date
that it becomes effective or the issue date of the Final Prospectus, as
applicable, all information (other than information with respect to the
-3-
Units and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A
("Rule 430A Information")), required by the Act to be included in such
Registration Statement and the Final Prospectus. Each Preliminary
Prospectus, at the time of the filing thereof, included all information
(other than Rule 430A Information), required by the Act to be included
in such Preliminary Prospectus. As filed, such Final Prospectus shall
contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Underwriters shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the time of execution of
this Agreement or, to the extent not completed at the time of execution
of this Agreement, shall contain only such specific additional
information and other changes as the Partnership has advised you, prior
to the time of execution of this Agreement, will be included or made
therein.
(b) The Registration Statement, on the date that it
became effective, and each Preliminary Prospectus, at the time of
filing thereof, did, and when the Final Prospectus is first filed in
accordance with Rule 424(b) and at the time of purchase and the
additional time of purchase, as the case may be, the Final Prospectus
(and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Act and the Exchange Act; the
Registration Statement, on the date that it became effective, and as
supplemented or amended, at the time this Agreement is executed, did
not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; and on the date
of filing pursuant to Rule 424(b), the Preliminary Prospectus did not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and on the date of filing pursuant to Rule 424(b) and at the time of
purchase and the additional time of purchase, as the case may be, the
Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Partnership makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement, the Preliminary Prospectus or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Partnership by
the Underwriters specifically for inclusion in the Registration
Statement, the Preliminary Prospectus or the Final Prospectus (or any
supplement thereto).
(c) The only significant subsidiaries (as defined in
Regulation S-X under the Act) of the Partnership (the "Subsidiaries")
are the Intermediate Partnership, Northern Border Pipeline Company, a
Texas general partnership ("Northern Border Pipeline"), Crestone Energy
Ventures, L.L.C., a Delaware limited liability company ("Crestone"),
Bear Paw Investments, LLC, a Delaware limited liability company ("Bear
Paw Investments"), Bear Paw Energy, LLC, a Delaware limited liability
company ("Bear Paw Energy"), Border Midwestern Company, a Delaware
corporation ("Border Midwestern"), and Midwestern Gas Transmission
Company, a Delaware corporation ("Midwestern Gas"). Each Subsidiary was
duly formed and is
-4-
validly existing and in good standing under the laws of its
jurisdiction of formation. Each of the Subsidiaries has, and at the
time of purchase and the additional time of purchase, as the case may
be, will have, full power and authority to conduct the activities
conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Registration Statement
and the Final Prospectus. Each of the Subsidiaries is, and at the time
of purchase and the additional time of purchase, as the case may be,
will be, duly licensed or qualified to do business and in good standing
as a foreign entity in all jurisdictions in which the nature of the
activities conducted by it or the character of the assets owned or
leased by it makes such licensing or qualification necessary, except
for such jurisdictions in which the failure so to qualify or register
would not have a material adverse effect upon such Subsidiary or
subject such Subsidiary, the Partnership or the Intermediate
Partnership to any material liability or disability. All of the
outstanding interests of Crestone have been duly authorized and validly
issued and are fully paid and non-assessable and are owned by the
Intermediate Partnership free and clear of all liens, encumbrances,
security interests, charges and claims whatsoever. Crestone, directly
or indirectly, owns (i) all of the membership interests in Crestone
Gathering Services, L.L.C., Crestone Wind River, L.L.C. and Crestone
Powder River, L.L.C., (ii) a 49% common membership interest in and
preferred shares of Bighorn Gas Gathering, L.L.C. ("Bighorn"), (iii) a
33.33% membership interest in Fort Union Gas Gathering, L.L.C., a
Delaware limited liability company ("Fort Union"), and (iv) a 35%
membership interest in Lost Creek Gathering, L.L.C., a Delaware limited
liability company ("Lost Creek"), in each case free and clear of any
liens, encumbrances, security interests, charges or claims (except that
Crestone's member interests in Fort Union and Lost Creek are or will be
pledged to the lenders with respect to those projects and except for
such other liens, encumbrances, security interests, charges or claims
as are not, individually or in the aggregate, material or except as
described in the Final Prospectus). All of the outstanding shares of
capital stock of Border Midstream Services, Ltd., an Alberta
corporation ("Border Midstream"), have been duly authorized and validly
issued and are fully paid and non-assessable and are owned by the
Intermediate Partnership free and clear of any liens, encumbrances,
security interests, charges or claims (except for such liens,
encumbrances, security interests, charges or claims as are not,
individually or in the aggregate, material or except as described in
the Final Prospectus). All of the outstanding interests of Bear Paw
Investments have been duly authorized and validly issued and are fully
paid and non-assessable and are owned by the Intermediate Partnership
free and clear of any liens, encumbrances, security interests, charges
or claims (except for such liens, encumbrances, security interests,
charges or claims as are not, individually or in the aggregate,
material or except as described in the Final Prospectus). All of the
outstanding interests of Bear Paw Energy have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by
Bear Paw Investments free and clear of any liens, encumbrances,
security interests, charges or claims (except for such liens,
encumbrances, security interests, charges or claims as are not,
individually or in the aggregate, material or except as described in
the Final Prospectus). All of the outstanding shares of capital stock
of Border Midwestern have been duly authorized and validly issued and
are fully paid and non-assessable and are owned by the Intermediate
Partnership free and clear of any liens, encumbrances, security
interests, charges or claims (except for such liens, encumbrances,
security interests, charges or claims as are not, individually or in
the aggregate, material or except as described in the Final
Prospectus). All of the outstanding shares of capital stock of
Midwestern Gas have been duly authorized and validly issued and are
fully paid and non-assessable and are owned by Border Midwestern free
and clear of any liens, encumbrances, security interests, charges or
claims (except for such liens,
-5-
encumbrances, security interests, charges or claims as are not,
individually or in the aggregate, material or except as described in
the Final Prospectus). The Intermediate Partnership owns a 70% general
partner interest in Northern Border Pipeline free and clear of any
liens, encumbrances, security interests, charges or claims (except for
such liens, encumbrances, security interests, charges or claims as are
not, individually or in the aggregate, material or except as described
in the Final Prospectus).
(d) The Partnership has been duly formed and is
validly existing as a limited partnership under the Delaware Revised
Uniform Limited Partnership Act (the "Delaware Act"), with all
necessary partnership power and authority to own or lease the
properties it owns or leases and to conduct the business it conducts in
each case in all material respects as described in the Registration
Statement and the Final Prospectus, and is duly qualified or registered
as a foreign limited partnership for the transaction of business under
the laws of each jurisdiction in which the failure so to qualify or
register would have a material adverse effect upon the Partnership or
subject the Partnership or the limited partners of the Partnership to
any material liability or disability.
(e) Northern Plains Natural Gas Company, a Delaware
corporation ("Northern Plains") and wholly owned subsidiary of Enron
Corp., an Oregon corporation ("Enron"), Pan Border Gas Company, a
Delaware corporation ("Pan Border") and wholly owned subsidiary of
Northern Plains, and Northwest Border Pipeline Company, a Delaware
corporation ("Northwest Border") and wholly owned subsidiary of The
Xxxxxxxx Companies, Inc., a Delaware corporation ("Xxxxxxxx")
(collectively, the "General Partners"), are the only general partners
of the Partnership with general partner interests in the Partnership of
1.0% in the aggregate; such general partner interests are duly
authorized by the Agreement of Limited Partnership of the Partnership
(as it may be amended or restated at the date this Agreement is
executed, the "Partnership Agreement"), and were validly issued to the
General Partners and are fully paid (to the extent required under the
Partnership Agreement).
(f) The General Partners are the sole general
partners of the Intermediate Partnership with general partner interests
in the Intermediate Partnership of 1.0101% in the aggregate subject to
the provisions of the Agreement of Limited Partnership of the
Intermediate Partnership (the "Intermediate Partnership Agreement");
such general partner interests are duly authorized by the Intermediate
Partnership Agreement and were validly issued to the General Partners
and are fully paid (to the extent required under the Intermediate
Partnership Agreement) (the Intermediate Partnership Agreement and the
Partnership Agreement are herein collectively referred to as the
"Partnership Agreements"). Complete and correct copies of the
certificate of limited partnership for each of the Partnership and the
Intermediate Partnership and of the Partnership Agreements, and all
amendments thereto have been delivered to the
-6-
Underwriters, and no changes therein will be made subsequent to the
date hereof and prior to the time of purchase or the additional time of
purchase, as the case may be.
(g) The limited partners of the Partnership hold
limited partner interests in the Partnership aggregating 99.0%, such
limited partner interests being represented by 41,623,014 Common Units,
excluding Units sold by the Partnership hereunder; such limited partner
interests are the only limited partner interests of the Partnership
that are issued and outstanding; the limited partner interests
represented thereby are duly authorized by the Partnership Agreement,
were validly issued and are fully paid (to the extent required under
the Partnership Agreement) and non-assessable (except as described in
the Partnership Agreement and except as set forth in Section 17-607 of
the Delaware Act).
(h) The Partnership is the sole limited partner of
the Intermediate Partnership, with a limited partner interest of
98.9899% (subject to the provisions of the Intermediate Partnership
Agreement); such limited partner interest is duly authorized by the
Intermediate Partnership Agreement, was validly issued in accordance
with the Intermediate Partnership Agreement and is fully paid and
non-assessable (except as described in the Intermediate Partnership
Agreement and except as set forth in Section 17-607 of the Delaware
Act); the Partnership owns, directly or indirectly, such limited
partner interest in the Intermediate Partnership free and clear of all
liens, encumbrances, security interests, charges or claims (except for
such liens, encumbrances, security interests, charges or claims as are
not, individually or in the aggregate, material or except as described
in the Registration Statement or Final Prospectus).
(i) Except as described in the Final Prospectus or
contained in the Partnership Agreement and except for (i) rights
granted pursuant to that certain Exchange Agreement dated May 31, 1997
among the Intermediate Partnership, the Partnership and the
stockholders of Xxxxxxxx Technologies, Inc. and (ii) rights granted
pursuant to that certain Exchange Agreement dated December 29, 1997
between the Partnership and Central Pacific Resources Partnership,
there are no preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of (except in
the case of restrictions on transfer for securities issued by the
Partnership in reliance on Section 4(2) of the Act), any limited
partner interests in the Partnership or the Intermediate Partnership
pursuant to either of the Partnership Agreements or other governing
documents or any agreement or other instrument to which the Partnership
or the Intermediate Partnership is a party or by which either of them
may be bound. The Common Units conform in all material respects to the
description of the Common Units contained in the Final Prospectus.
Except as described above, there are no outstanding options or warrants
to purchase any Common Units.
(j) None of the Partnership or the Subsidiaries has
sustained since the date of the latest audited financial statements
incorporated by reference in each of the Registration Statement and the
Final Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree,
-7-
otherwise than as set forth or contemplated in the Final Prospectus;
and, since the date as of which information is given in the Final
Prospectus, there has not been any material adverse change in the
capitalization or long-term debt of any of the Subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, or results of operations of any of the
Subsidiaries, otherwise than as set forth or contemplated in the Final
Prospectus.
(k) The Partnership and the Subsidiaries have good
and indefeasible title to all real and personal property necessary to
own and operate their businesses in all material respects as described
in the Final Prospectus, free and clear of all liens, encumbrances,
security interests, charges, claims and defects except (1) as described
in the Final Prospectus and (2) such as do not materially interfere
with the ownership, operation or benefits of ownership of such
businesses or materially increase the cost of operation or ownership of
such businesses, provided that, (a) with respect to the gas
transmission and gathering pipelines of Northern Border Pipeline,
Crestone, Bear Paw Energy and Midwestern Gas and right-of-way interests
related thereto (the "Pipeline Properties") the foregoing shall only
constitute a representation that, except as described in the Final
Prospectus, (i) Northern Border Pipeline, Crestone, Bear Paw Energy and
Midwestern Gas have sufficient title to enable them to use such
Pipeline Properties in their businesses as they have been used in the
past and as are proposed to be used in the future as described in the
Final Prospectus and (ii) any lack of title has not had and will not
have any material adverse effect on the ability of Northern Border
Pipeline, Crestone, Bear Paw Energy and Midwestern Gas to use such
Pipeline Properties as they have been used in the past and are proposed
to be used in the future as described in the Final Prospectus and will
not materially increase the cost of such use, and (b) with respect to
any real property, buildings and equipment held under lease by Northern
Border Pipeline, Crestone, Bear Paw Energy or Midwestern Gas, such real
property, buildings and equipment are held by Northern Border Pipeline,
Crestone, Bear Paw Energy or Midwestern Gas under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such real
property, buildings and equipment by such person.
(l) The sale of the Units by the Partnership and the
compliance by the Partnership and the Intermediate Partnership with all
of the provisions of this Agreement and the consummation of the
transactions contemplated herein and in the Final Prospectus to be
consummated at the time of purchase and the additional time of
purchase, as the case may be, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Partnership or any of the
Subsidiaries is a party or by which any of them is bound or to which
any of the property or assets of any of them is subject, nor will such
action result in any violation of the provisions of the agreement of
limited partnership, charter or other governing documents of the
Partnership or any of the Subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over any of them or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or
-8-
body is required for the consummation by the Partnership of the
transactions contemplated herein and in the Final Prospectus to be
consummated at the time of purchase and the additional time of
purchase, as the case may be, except for (i) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or blue sky laws in connection with the purchase
and distribution of the Units by the Underwriters, and (ii) such
consents, approvals, authorizations, orders, registrations or
qualifications (A) as have been obtained or will be obtained prior to
the time of purchase and the additional time of purchase, as the case
may be, or (B) that, if not obtained, would not, individually or in the
aggregate, have a material adverse effect upon the holders of Common
Units or the consolidated financial position or results of operations
or prospects of the Partnership, the Intermediate Partnership or
Northern Border Pipeline. The offering and sale of the Units as
contemplated by this Agreement does not give rise to any rights, other
than those which have been waived or satisfied, for or relating to the
registration of any Common Units or other securities of the Partnership
or which would require the inclusion of any Common Units or other
securities of the Partnership in such offering and sale of the Units
pursuant to "tag along" or other such rights.
(m) Other than as set forth in the Final Prospectus,
there are no legal or governmental proceedings pending to which the
Partnership or any of the Subsidiaries is a party or of which any of
their respective properties is the subject which, if determined
adversely to such person, would individually or in the aggregate have a
material adverse effect on the consolidated financial position or
results of operations or prospects of the Partnership, the Intermediate
Partnership or Northern Border Pipeline; and, to the best of the
Partnership's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(n) KPMG LLP, who have certified certain financial
statements of the Partnership and Northern Border Pipeline, are
independent public accountants with respect to Northern Border
Pipeline, the Intermediate Partnership and the Partnership as required
by the Act.
(o) (i) This Agreement has been duly authorized,
executed and delivered by each of the Partnership and the Intermediate
Partnership and constitutes the valid and binding agreement of each
such person, (ii) the Partnership Agreement has been duly authorized,
executed and delivered by the General Partners and is a valid and
legally binding agreement of the General Partners, enforceable against
the General Partners in accordance with its terms, and (iii) the
Intermediate Partnership Agreement has been duly authorized, executed
and delivered by the parties thereto and is a valid and legally binding
agreement of such parties, enforceable against such parties in
accordance with its terms, except as the enforceability of this
Agreement and the Partnership Agreements may be affected by (A) the
matters described in the Final Prospectus and (B) bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and general equitable
principles.
-9-
(p) Each of the Partnership and the Subsidiaries
carries, or is covered by, insurance in such amounts and covering such
risks as is customarily obtained by businesses similarly situated,
taking into account self-insurance.
(q) None of the Partnership or the Subsidiaries is
in, nor will consummation of the transactions contemplated herein or in
the Final Prospectus to be consummated at the time of purchase and the
additional time of purchase, as the case may be, result in: (i)
violation of its charter, bylaws, agreement of limited or general
partnership or other governing document (except for the failure to mail
the reports identified in Sections 8.3(a) and (b) of the Partnership
Agreement); or (ii) default (and no event has occurred which, with
notice or lapse of time or both, would constitute such a default) in
the due performance or observance of any term, covenant or condition
contained in any material contract, agreement, indenture or instrument
to which it or its property may be subject, or violation of any law,
ordinance, governmental rule, regulation or court decree to which it or
its property may be subject, which default or violation, individually
or in the aggregate, could have a material adverse effect on the
holders of Common Units or the consolidated financial position or
results of operations or prospects of any of the Partnership, the
Intermediate Partnership or Northern Border Pipeline; and, except as
described in the Final Prospectus, none of the Partnership or the
Subsidiaries has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business.
(r) Neither the Partnership nor the Intermediate
Partnership is, or at the time of purchase or the additional time of
purchase, as the case may be, will be, (a) a "holding company" or
"affiliate" of a holding company (other than an exempt holding company)
or public utility, as defined in the Public Utility Holding Company Act
of 1935 or (b) an "investment company" as that term is defined in the
Investment Company Act of 1940, as amended, and the rules and
regulations thereunder (the "Investment Company Act");
(s) Except as described in the Final Prospectus, the
Partnership and the Subsidiaries possess, and are operating in
compliance in all material respects with, all certificates, authorities
or permits issued by the appropriate local, state, federal or foreign
regulatory agencies or bodies necessary to conduct the businesses
currently (or, as described or contemplated in the Final Prospectus, to
be) operated by them, except for such certificates, authorizations or
permits which, if not obtained, would not reasonably be expected to
have, individually or in the aggregate, a material adverse effect upon
the ability of the Partnership and the Subsidiaries to conduct their
businesses in all material respects as currently conducted and as
contemplated by the Final Prospectus to be conducted; and, except as
described in the Final Prospectus, none of the Partnership or the
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would be expected to have a
material adverse effect upon the ability of the Partnership or the
Subsidiaries to conduct their businesses in all material respects as
currently conducted and as contemplated by the Final Prospectus to be
conducted.
-10-
(t) Neither the Partnership nor the Intermediate
Partnership has taken, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation of the
price of the Common Units to facilitate the sale or resale of the
Common Units in violation of any law, rule or regulation.
(u) The financial statements of the Partnership
(including the related notes and supporting schedules) filed as part of
or incorporated by reference in the Registration Statement or included
or incorporated by reference in the Final Prospectus present fairly in
all material respects the consolidated financial condition, results of
operations and cash flows of the Partnership and its subsidiaries at
the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles (except as
otherwise described therein) applied on a consistent basis throughout
the periods involved.
(v) The Partnership maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(w) The Partnership and the Subsidiaries (i) are in
compliance with all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety,
the environment or imposing liability or standards of conduct
concerning any Hazardous Material (as hereinafter defined)
("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, individually or in the aggregate, result in a
material adverse effect on the condition (financial or otherwise) or on
the earnings, business, properties, business prospects or operations of
the Partnership and the Subsidiaries, taken as a whole. The term
"Hazardous Material" means (A) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (B) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act, as amended, (C) any petroleum
or petroleum product, (D) any polychlorinated biphenyl and (E) any
pollutant or contaminant or hazardous, dangerous, or toxic chemical,
material, waste or substance regulated under or within the meaning of
any other Environmental Law.
(x) In the ordinary course of their businesses, the
Partnership and the Subsidiaries conduct a periodic review of the
effect of Environmental Laws on
-11-
the businesses, operations and properties of the Partnership and the
Subsidiaries, in the course of which they identify and evaluate
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties). Except as set forth in the
Registration Statement and the Final Prospectus there are no costs or
liabilities associated with or arising in connection with Environmental
Laws as currently in effect (including, without limitation, costs of
compliance therewith) which would, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise) or on
the earnings, business, properties, business prospects or operations of
the Partnership and the Subsidiaries, taken as a whole.
(y) The Partnership and the Subsidiaries are in
compliance with all federal, state and local employment and labor laws,
including, but not limited to, laws relating to non-discrimination in
hiring, promotion and pay of employees; no labor dispute exists
involving the employees of Northern Plains or NBP Services Corporation,
a Delaware corporation, or, to the knowledge of the Partnership or the
Intermediate Partnership, is imminent or threatened; and neither the
Partnership nor the Intermediate Partnership is aware of any existing,
imminent or threatened labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors that could result in
a material adverse effect on the condition (financial or otherwise) or
on the earnings, business, properties, business prospects or operations
of the Partnership and the Subsidiaries, taken as a whole.
(z) The outstanding Common Units are listed for
trading on the New York Stock Exchange, and the Units to be sold
pursuant to this Agreement have been approved for listing on the New
York Stock Exchange, subject to official notice of issuance.
(aa) For purposes of Section 414(b) or (c) of the
Internal Revenue Code of 1986, as amended (the "Code"), and Section
4001 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), none of the Partnership, the Intermediate Partnership,
Northern Border Pipeline nor any other entity controlled by any of them
is controlled by or under common control with Enron or any of its
subsidiaries.
4. Certain Covenants. The Partnership and the Intermediate
Partnership agree with the Underwriters:
(a) to furnish such information as may be required
and otherwise to cooperate in qualifying the Units for offering and
sale under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Units; provided that the
Partnership shall not be required to qualify as a foreign partnership
or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale
of the Units); and to promptly advise you of the receipt by the
Partnership of any notification with respect to the suspension of the
qualification of the
-12-
Units for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(b) during the period of time referred to in the
second sentence in paragraph (e) below, to advise you and your counsel
promptly and, if requested by you, to confirm such advice in writing:
(i) of any request by the Commission for amendment of or a supplement
to the Registration Statement, the Basic Prospectus or the Final
Prospectus or for additional information; (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the
Units for offering or sale in any jurisdiction or the initiation of any
proceeding for such purpose; and (iii) of any change in the business,
prospects, financial condition or results of operations of the
Partnership or any of the Subsidiaries, or of the happening of any
event, which makes any statement of a material fact made in the
Registration Statement or the Final Prospectus (as then amended or
supplemented) untrue or that requires the making of any additions to or
changes in the Registration Statement or the Final Prospectus (as then
amended or supplemented) in order to state a material fact required by
the Act to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or
supplement the Final Prospectus (as then amended or supplemented) to
comply with the Act or any other law. If at any time within the period
of time referred to in the second sentence in paragraph (e) below, the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Partnership and the Intermediate
Partnership will make every reasonable effort to obtain the withdrawal
of such order at the earliest possible time;
(c) to furnish to you, at your request and without
charge, (i) one signed copy of the Registration Statement as originally
filed with the Commission and of each amendment thereto, including
financial statements and all exhibits to the Registration Statement and
(ii) such number of conformed copies of the Registration Statement as
originally filed and of each amendment thereto, but without exhibits,
as you may request;
(d) prior to the end of the period of time referred
to in the second sentence in paragraph (e) below, not to file any
amendment to the Registration Statement or make any amendment or
supplement to the Final Prospectus, or file any document that, upon
filing, becomes an Incorporated Document, of which you and your counsel
shall not previously have been advised or to which, after you and your
counsel shall have received a copy of the document proposed to be
filed, you shall reasonably object; provided that your consent shall
not be unreasonably withheld or delayed;
(e) to cause the Final Prospectus to be filed
pursuant to, and in compliance with, Rule 424(b). As soon after the
execution and delivery of this Agreement as possible and thereafter
from time to time for such period as a prospectus is required by the
Act to be delivered in connection with sales of the Units by the
Underwriters or any dealer, the Partnership and the Intermediate
Partnership will expeditiously deliver to the Underwriters and each
dealer, without charge, as many copies of the Final Prospectus (and of
any amendment or supplement thereto) as you may
-13-
reasonably request. The Partnership and the Intermediate Partnership
consent to the use of the Final Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Act and
with the securities or blue sky laws of the jurisdictions in which the
Units are offered by the Underwriters and by all dealers to whom Units
may be sold, both in connection with the offering and sale of the Units
and for such period of time thereafter as the Final Prospectus is
required by the Act to be delivered in connection with sales of the
Units by the Underwriters or any dealer. If during such period of time
any event shall occur that in the judgment of the Partnership or the
Intermediate Partnership or in the opinion of counsel for the
Underwriters is required to be set forth in the Final Prospectus (as
then amended or supplemented) or should be set forth therein in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to
supplement or amend the Final Prospectus (or to file under the Exchange
Act any document that, upon filing, becomes an Incorporated Document)
in order to comply with the Act or any other law, the Partnership and
the Intermediate Partnership will forthwith prepare and, subject to the
provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and
will expeditiously furnish to the Underwriters and dealers a reasonable
number of copies thereof. In the event that the Partnership or the
Intermediate Partnership and the Underwriters agree that the Final
Prospectus should be amended or supplemented, the Partnership and the
Intermediate Partnership, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be covered by the
proposed amendment or supplement;
(f) to make generally available to its security
holders as soon as practicable, but in any event not later than
eighteen months after the "effective date of the Registration
Statement" (as defined in Rule 158(c) of the Act), an earnings
statement of the Partnership (which need not be audited) complying with
Section 11(a) of the Act;
(g) to pay all costs, expenses, fees and taxes (other
than any transfer taxes and fees and disbursements of counsel for the
Underwriters except as set forth under Section 5 hereof and (iii), (iv)
and (vi) below) in connection with (i) the preparation and filing of
the Registration Statement, each Preliminary Prospectus, the Final
Prospectus and any amendments or supplements thereto, and the printing
and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Units, (iii) the
reproduction and delivery of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Powers of Attorney and any
closing documents (including compilations thereof), (iv) the
qualification of the Units for offering and sale under state laws and
the determination of their eligibility for investment under state law
as aforesaid (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (v) any listing of the
Units on any securities exchange or qualification of the Units for
quotation on NASDAQ and any registration thereof under the Exchange
Act, (vi) the filing fees incident to the review by the National
Association of Securities Dealers, Inc. of the public offering of the
Units, (vii) the costs and expenses of the Partnership relating to
presentations or meetings undertaken in connection with the marketing
of the offer and sale of the Units to
-14-
prospective investors and the Underwriters' sales forces, including,
without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged
by or on behalf of the Partnership in connection with the road show
slides and graphics, fees and expenses of any consultants engaged by or
on behalf of the Partnership in connection with the road show
presentations, travel, lodging and other expenses incurred by the
officers of the Partnership and any such consultants, and the cost of
any aircraft chartered in connection with the road show and (viii) the
performance of the Partnership's other obligations hereunder; and
(h) not to sell, offer or agree to sell, contract to
sell, hypothecate, pledge, grant any option to sell or otherwise
dispose of, directly or indirectly, any Common Units or securities
convertible into or exchangeable or exercisable for Common Units or
warrants or other rights to purchase Common Units or any other
securities of the Partnership that are substantially similar to Common
Units, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Units or securities convertible into or exercisable or
exchangeable for Common Units or other rights to purchase Common Units
or any other securities of the Partnership that are substantially
similar to Common Units for a period of 60 days after the date hereof
(the "Lock-Up Period"), without the prior written consent of UBS
Warburg LLC, except for (i) the registration of the Units and the sales
to the Underwriters pursuant to this Agreement, (ii) issuances of
Common Units upon the exercise of options or warrants disclosed as
outstanding in the Registration Statement and the Final Prospectus and
(iii) the issuance of employee stock options not exercisable during the
Lock-Up Period pursuant to stock option plans described in the
Registration Statement and the Final Prospectus.
5. Reimbursement of Expenses. If the Units are not delivered
for any reason other than the termination of this Agreement pursuant to the
first two paragraphs of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Partnership
and the Intermediate Partnership shall, in addition to paying the amounts
described in Section 4(g) hereof, reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and expenses of their counsel.
6. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties set forth in this Agreement on the part of the
Partnership and the Intermediate Partnership on the date hereof and at the time
of purchase and at the additional time of purchase, as the case may be (unless
previously waived), the performance by the Partnership and the Intermediate
Partnership of their obligations hereunder and to the following additional
conditions precedent:
(i) The Partnership shall have requested and caused
Xxxxxxx & Xxxxx Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., counsel for the
Partnership, to have furnished to you at the time of purchase and at the
additional time of purchase, as the case may be, its opinion, dated the time of
purchase or the additional time of purchase, as the case may be, and addressed
to the Underwriters, and in form and substance satisfactory to you and your
counsel, to the effect that:
-15-
(a) Each of the Partnership and the Intermediate
Partnership has been duly formed and is validly existing as a limited
partnership under the Delaware Act, with full partnership power and
authority under the Delaware Act and the Partnership Agreement and the
Intermediate Partnership Agreement, respectively, necessary to own,
lease and operate its properties and conduct its businesses as
described in the Final Prospectus;
(b) The Partnership has been registered as a foreign
limited partnership for the transaction of business under the laws of
the States of Texas and Nebraska, and to such counsel's knowledge based
upon a certificate (a copy of which has been furnished to you and your
counsel) from an authorized officer of the Partnership as to the states
in which the Partnership owns or leases property or conducts business,
the States of Texas and Nebraska are the only jurisdictions in which
the Partnership owns or leases property or conducts business so as to
require qualification or registration to conduct business as a foreign
limited partnership, except where the failure to so qualify or register
would not (i) have a material adverse effect upon the Partnership, the
Intermediate Partnership or the General Partners or (ii) subject the
limited partners of the Partnership to any material liability or
disability;
(c) The Intermediate Partnership has been qualified
or registered as a foreign limited partnership for the transaction of
business under the laws of the States of Illinois, Iowa, Indiana,
Minnesota, Montana, Nebraska, North Dakota, South Dakota and Texas, and
to such counsel's knowledge based upon a certificate (a copy of which
has been furnished to you and your counsel) from an authorized officer
of the Partnership as to the states in which the Partnership owns or
leases property or conducts business, such jurisdictions are the only
jurisdictions in which the Intermediate Partnership owns or leases
property or conducts business so as to require qualification or
registration to conduct business as a foreign limited partnership,
except where the failure to so qualify or register would not (i) have a
material adverse effect upon the Partnership, the Intermediate
Partnership or the General Partners or (ii) subject the limited
partners of the Partnership to any material liability or disability;
(d) The General Partners are the sole general
partners of each of the Partnership and the Intermediate Partnership
with a combined general partner interest in the Partnership of 1.0% and
a combined general partner interest in the Intermediate Partnership of
1.0101% (subject to the provisions of the Partnership Agreement and the
Intermediate Partnership Agreement, respectively); such general partner
interests are duly authorized by the Partnership Agreement and the
Intermediate Partnership Agreement, respectively, are validly issued
and fully paid (to the extent required by the Partnership Agreement and
Intermediate Partnership Agreement) and are owned of record by the
General Partners free and clear of all liens, encumbrances, security
interests, charges or claims of record (except as provided in the
Partnership Agreement, the Intermediate Partnership Agreement or the
Northern Border Pipeline Partnership Agreement or pursuant to the
Delaware Act, as amended) (A) in respect of which a financing statement
under the Uniform Commercial Code (the "UCC") of the State of Delaware
naming a General Partner as debtor is on file in the offices of the
Secretary of State of the State of Delaware or (B) otherwise known to
such counsel;
-16-
(e) The Partnership is the sole limited partner of
the Intermediate Partnership, with a limited partner interest in the
Intermediate Partnership of 98.9899% (subject to the provisions of the
Intermediate Partnership Agreement); such limited partner interest is
duly authorized by the Intermediate Partnership Agreement and is
validly issued, fully paid and non-assessable, except as provided in
Section 17-607 of the Delaware Act; and the Partnership owns such
limited partner interest in the Intermediate Partnership free and clear
of all liens, encumbrances, security interests, charges or claims of
record (except as provided in the Intermediate Partnership Agreement or
pursuant to the Delaware Revised Uniform Limited Partnership Act, as
amended) (A) in respect of which a financing statement under the UCC of
the State of Delaware naming the Partnership as debtor is on file in
the offices of the Secretary of State of the State of Delaware or (B)
otherwise known to such counsel;
(f) Immediately prior to the closing under this
Agreement, the limited partners of the Partnership held limited partner
interests in the Partnership aggregating 99.0% (subject to the
provisions of the Partnership Agreement); such limited partner
interests are represented by 41,623,014 Common Units; such limited
partner interests and the Units will be the only limited partner
interests of the Partnership that are issued and outstanding
immediately following the closing under this Agreement; the Units are
authorized by the Partnership Agreement and are validly issued, fully
paid and non-assessable, except as provided in Section 17-607 of the
Delaware Act;
(g) Insofar as such descriptions relate to legal
matters or descriptions of provisions of the governing instruments, the
Common Units conform in all material respects to the descriptions
thereof contained in the Final Prospectus;
(h) Except as described in the Final Prospectus and
contained in the Partnership Agreements and except for (i) rights
granted pursuant to that certain Exchange Agreement dated May 31, 1997
among the Intermediate Partnership, the Partnership and the
stockholders of Xxxxxxxx Technologies, Inc. and (ii) rights granted
pursuant to that certain Exchange Agreement dated December 29, 1997
between the Partnership and Central Pacific Resources Partnership,
there are no preemptive or other rights to subscribe for or to purchase
any limited partner interests of the Partnership or the Intermediate
Partnership pursuant to the Partnership Agreements or, to such
counsel's knowledge, pursuant to any other agreement or instrument to
which the Partnership or the Intermediate Partnership is a party; and
except as described in the Final Prospectus and except for restrictions
on transfer of securities issued by the Partnership in reliance on
Section 4(2) of the Act, there are no restrictions upon the voting or
transfer of any limited partner interests of the Partnership or the
Intermediate Partnership pursuant to the Partnership Agreements or, to
such counsel's knowledge, pursuant to any other agreement or instrument
to which the Partnership or the Intermediate Partnership is a party.
(i) The Registration Statement was declared effective
under the Act on March 3, 1999; the Final Prospectus was filed with the
Commission pursuant to subparagraph (5) of Rule 424(b) on June 27,
2002; and no stop order suspending the
-17-
effectiveness of the Registration Statement has been issued and, to
such counsel's knowledge, no proceeding for that purpose is pending or
threatened by the Commission;
(j) The Registration Statement and the Final
Prospectus and any further amendments or supplements thereto made by
the Partnership prior to the time of purchase and the additional time
of purchase, as the case may be, comply as to form in all material
respects with the requirements of the Act (other than the financial
statements and related schedules or other financial or statistical data
and the projected data included therein, as to which such counsel need
not express any opinion);
(k) To such counsel's knowledge, there are no
contracts or other documents that are required to be summarized or
described in the Final Prospectus or filed as exhibits to the
Registration Statement by the Act that have not been summarized,
described or incorporated by reference in the Final Prospectus or filed
as exhibits to the Registration Statement;
(l) The statements contained in the Basic Prospectus
under the caption "Tax Considerations" and in the Final Prospectus
under the caption "Prospectus Supplement Summary - Tax Considerations,"
insofar as such statements describe federal statutes, rules and
regulations, constitute a fair summary thereof that is accurate in all
material respects; such counsel's opinion filed as Exhibit 8 to the
Registration Statement and as Exhibit 8 to the Partnership's Form 8-K
filed on June 27, 2002, are confirmed, and you may rely upon such
opinions as if each of them were addressed to you;
(m) This Agreement has been duly authorized, executed
and delivered by each of the Partnership and the Intermediate
Partnership; assuming due authorization, execution and delivery by, and
the validity, legally binding effect and enforceability with respect
to, the other parties thereto, the General Partnership Agreement
governing Northern Border Pipeline, as amended and in effect on the
date hereof, and each of the Partnership Agreements, constitute valid
and legally binding agreements of each of the Partnership, the
Intermediate Partnership and the General Partners (in each case, to the
extent a party thereto) and are enforceable against each such party in
accordance with their respective terms, subject to the qualifications
that (A) the enforceability of each such agreement may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws of general applicability relating to or
affecting the rights of creditors generally, (B) the enforceability of
each such agreement may be limited by public policy, applicable law
relating to fiduciary duties and the judicial imposition of an implied
covenant of good faith and fair dealing, (C) the enforceability of
equitable rights and remedies provided for in each such agreement is
subject to equitable defenses and judicial discretion, and (D) the
enforceability of certain other provisions of each such agreement may
be limited by applicable laws and court decisions, none of which should
materially and adversely interfere with the practical realization of
the material benefits intended to be provided by such agreements;
(n) The compliance by each of the Partnership and the
Intermediate Partnership with all of the provisions of this Agreement
will not, with the
-18-
passage of time or upon stated contingency or otherwise, (A) conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any of the agreements
filed or incorporated by reference as exhibits to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 2001 (the
"2001 10-K") or any report filed by the Partnership with the Commission
subsequent to the filing of the 2001 10-K, or (B) result in any breach
or violation of the provisions of the certificate of limited
partnership of the Partnership or the Intermediate Partnership or of
any statute or any rule or regulation of any governmental agency or
body having jurisdiction over either of such entities or its
properties, excluding in each case any breaches or violations which,
individually or in the aggregate, would not have a material adverse
effect on the limited partners of the Partnership or the financial
condition, results of operation, business or prospects (as described in
the Final Prospectus) of the Partnership and the Intermediate
Partnership considered as a whole;
(o) Except as described in the Final Prospectus or as
provided in the Partnership Agreement and the Acquisition Agreement,
dated March 14, 2001, among the Partnership, the Intermediate
Partnership, Bear Paw Investments, Bear Paw Energy and the other
parties named therein, to such counsel's knowledge, there are no
contracts, agreements or understandings between the Partnership, the
Intermediate Partnership or the General Partners and any person
granting such person the right to require the Partnership to file a
registration statement under the Act with respect to any securities of
the Partnership owned or to be owned by such person or to require the
Partnership to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Partnership under the Act, other than any such rights as have been
waived; and none of such rights described in this paragraph would
require any such securities to be included in the offering and sale of
the Units;
(p) Neither the Partnership nor the Intermediate
Partnership is an "investment company" as that term is defined in the
Investment Company Act and the rules and regulations thereunder and
each General Partner is either (A) not an "investment company" as that
term is defined in the Investment Company Act and the rules and
regulations thereunder or (B) exempt from the Investment Company Act;
(q) None of the Partnership, the Intermediate
Partnership or any General Partner is a "public utility company," a
"holding company" or an "affiliate" of a holding company (other than an
exempt holding company) or a public utility company within the meaning
of the Public Utility Holding Company Act of 1935, as amended;
(r) No consent, approval, authorization, order,
registration or qualification of or with any federal governmental
agency or body or any governmental agency or body of the State of Texas
is required for the sale of the Units or the consummation by any of the
Partnership, the Intermediate Partnership, the General Partners of the
transactions contemplated by this Agreement and the Final Prospectus,
except (i) such consents, approvals, authorizations, orders,
registrations or qualifications (a) as have been obtained, (b) as may
be required under state securities or blue sky laws,
-19-
or (c) which, if not obtained, would not, individually or in the
aggregate, have a material adverse effect upon the ability of the
Partnership and the Intermediate Partnership to conduct their
businesses as described in the Final Prospectus;
(s) The Common Units outstanding immediately prior to
the closing under this Agreement are listed on the New York Stock
Exchange, and the Units to be sold pursuant to this Agreement have been
approved for listing on the New York Stock Exchange, subject to
official notice of issuance;
(t) Northern Border Pipeline is validly existing as a
general partnership under the laws of the State of Texas, with full
partnership power and authority to own, lease and operate its
properties and conduct its business in all material respects as
described in the Final Prospectus; and
(u) For purposes of Section 414(b) or (c) of the Code
and Section 4001 of ERISA, none of the Partnership, the Intermediate
Partnership, Northern Border Pipeline nor any other entity controlled
by any of them is controlled by or under common control with Enron or
any of its subsidiaries.
In addition, such counsel shall state that in the course of
preparation by the Partnership of the Registration Statement and the Final
Prospectus, such counsel participated in conferences with officers and other
representatives of the Partnership and certain of the Subsidiaries,
representatives of the independent public accountants of the Partnership and, in
the case of the Final Prospectus, your representatives, at which the contents of
the Registration Statement, Final Prospectus and related matters were discussed.
Such counsel shall also state that although they have not conducted any
independent investigation with regard to the information set forth in the
Registration Statement or the Final Prospectus (except with respect to the
foregoing opinions) and are not (except as aforesaid) passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained therein, on the basis of the foregoing, no facts have come
to such counsel's attention that cause such counsel to believe that the
Registration Statement or any amendment thereto on the date it became effective,
or as supplemented or amended at the time of purchase and the additional time of
purchase, as the case may be, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that, as of its date, the time
of purchase and the additional time of purchase, as the case may be, the Final
Prospectus or any further amendment or supplement thereto contained an untrue
statement of a material fact or omitted a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. In making such
statement, such counsel may state that they do not express any comment with
respect to the financial statements and related schedules and other financial
data included or incorporated by reference in the Registration Statement or in
the Final Prospectus or any further amendment or supplement thereto (including,
without limitation, statements relating to projected cash distributions to the
limited partners of the Partnership) or any statement contained therein or
omitted therefrom in reliance upon and in conformity with written information
furnished to the Partnership by the Underwriters expressly for use therein.
-20-
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of the Delaware Act, the Delaware Limited
Liability Company Act, the Delaware General Corporation Law and the laws of the
States of New York and Texas, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the Underwriters
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Partnership and public officials. References to
the Final Prospectus in this paragraph (i) include any supplements thereto at
the time of purchase or the additional time of purchase, as the case may be.
(ii) The Partnership shall have requested and caused Xxxxx X.
Place, Esq., General Counsel of Northern Plains, to have furnished to you at the
time of purchase and at the additional time of purchase, as the case may be, her
opinion with respect to the Units, dated the time of purchase or the additional
time of purchase, as the case may be, and addressed to the Underwriters, and in
form and substance satisfactory to you and your counsel, to the effect that:
(a) Except as described in the Final Prospectus, to
her knowledge there are no legal or governmental proceedings pending to
which the Partnership or any of the Subsidiaries is a party or of which
any property of any of them is the subject which, if determined
adversely to such person, would individually or in the aggregate have a
material adverse effect on the Partnership and its Subsidiaries taken
as a whole (a "Material Adverse Effect"); and, to her knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(b) Except as described in the Final Prospectus, to
her knowledge each of the Partnership and the Subsidiaries possesses,
and is operating in compliance in all material respects with, all
certificates, authorities or permits issued by the appropriate local,
state or federal regulatory agencies or bodies necessary to conduct its
businesses as they are currently conducted as described in the Final
Prospectus, except for such certificates, authorizations or permits
which, if not obtained, would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect upon the
ability of the Partnership and each of the Subsidiaries to conduct its
businesses in all material respects as currently conducted as described
in the Final Prospectus; to her knowledge, the Partnership and each of
the Subsidiaries possesses all certificates, authorities or permits
issued by the appropriate local, state or federal regulatory agencies
or bodies necessary to conduct its businesses as proposed to be
conducted as described in the Final Prospectus, except for (a)
certificates, authorizations or permits that, if not obtained, would
not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; and (b) certificates, authorizations or
permits that are reasonably expected to be obtained in the ordinary
course of business; and, except as described in the Final Prospectus,
none of the Partnership or any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would be expected to have a Material Adverse Effect. All
government regulations, authorizations and procedures which affect the
Partnership or any of the Subsidiaries and the operation of their
respective businesses and that are required to be described in the
Final Prospectus are as described therein.
-21-
(c) The Partnership and each of the Subsidiaries (1)
is in compliance with all applicable Environmental Laws, (2) has
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct its businesses and (3)
is in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals
or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the aggregate,
result in a Material Adverse Effect; provided, such counsel may qualify
such opinions to her knowledge with respect to Bear Paw Investments,
Bear Paw Energy, Border Midwestern and Midwestern Gas.
(d) None of the Partnership or any of the
Subsidiaries is: (i) in violation of its charter, bylaws, agreement of
limited or general partnership or other governing document (except for
the failure to mail the reports identified in Sections 8.3(a) and (b)
of the Partnership Agreement), (ii) in default in any material respect,
and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which it is a party or by which it is bound or to which
any of its properties or assets is subject, or (iii) other than as set
forth in the Final Prospectus, in violation in any material respect of
any law, ordinance, government rule, regulation or court decree to
which it or its properties or assets may be subject, except for such
violations and defaults that would not, individually or in the
aggregate, result in an Material Adverse Effect; provided, such counsel
may qualify the opinion in this clause (iii) to her knowledge with
respect to Bear Paw Investments, Bear Paw Energy, Border Midwestern and
Midwestern Gas.
(e) Since the date as of which information is given
in the Final Prospectus through the time of purchase and the additional
time of purchase, as the case may be, and except as may otherwise be
disclosed in the Final Prospectus, neither the Partnership nor the
Intermediate Partnership has (i) issued or granted any partner
interests, (ii) incurred any material liability or obligation, direct
or contingent, other than liabilities and obligations that were
incurred in the ordinary course of business, (iii) entered into any
material transaction not in the ordinary course of business or (iv)
distributed any of the cash or other assets of the Partnership to any
partner.
(f) The Partnership and the Subsidiaries have good
and indefeasible title to all real and personal property necessary to
own and operate their businesses in all material respects as described
in the Final Prospectus, free and clear of all liens, encumbrances,
security interests, charges, claims and defects except (1) as described
in the Final Prospectus and (2) such as do not materially interfere
with the ownership, operation or benefits of ownership of such
businesses or materially increase the cost of operation or ownership of
such businesses, provided that, (a) with respect to the Pipeline
Properties, the foregoing shall only constitute a statement that, to
her knowledge, except as described in the Final Prospectus (i) Northern
Border Pipeline, Crestone, Bear Paw Energy and Midwestern Gas have
sufficient title to enable them to use such Pipeline Properties in
their businesses as they have been used in the past and are
-22-
proposed to be used in the future as described in the Final Prospectus
and (ii) any lack of title has not had and is not reasonably likely to
have a Material Adverse Effect, and (b) with respect to any real
property, buildings and equipment held under lease by Northern Border
Pipeline, Crestone, Bear Paw Energy or Midwestern Gas, such real
property, buildings and equipment are held by Northern Border Pipeline,
and to her knowledge, by Crestone, Bear Paw Energy and Midwestern Gas
under valid, subsisting and enforceable leases with such exceptions as
have not had and are not reasonably likely to have a Material Adverse
Effect.
(g) Each of Northern Border Pipeline, Crestone, Bear
Paw Investments, Bear Paw Energy, Border Midwestern and Midwestern Gas
was duly formed (to her knowledge in the case of the latter four
entities) and is validly existing and in good standing under the laws
of its jurisdiction of formation and has full corporate, partnership or
limited liability company power and authority, as the case may be, to
conduct the activities conducted by it, to own or lease all the assets
owned or leased by it and to conduct its businesses as described in the
Final Prospectus. Each of Northern Border Pipeline, Crestone, Bear Paw
Energy and Midwestern Gas is duly licensed or qualified to do business
and in good standing as a foreign entity in all jurisdictions in which
the nature of the activities conducted by it or the character of the
assets owned or leased by it makes such licensing or qualification
necessary, except for such jurisdictions in which the failure so to
qualify or register would not have a material adverse effect upon it or
subject it, the Partnership or the Intermediate Partnership to any
material liability or disability. All of the outstanding interests of
Northern Border Pipeline have been duly authorized and validly issued
and are fully paid and non-assessable (except as provided in the
partnership agreement of Northern Border Pipeline). The Intermediate
Partnership owns a 70% general partner interest in Northern Border
Pipeline, and such interest is free and clear of any liens,
encumbrances, security interests, charges or claims (except for such
liens, encumbrances, security interests, charges or claims as are not,
individually or in the aggregate, material or except as described in
the Final Prospectus). All of the outstanding shares of Crestone have
been duly authorized and validly issued and are fully paid and
non-assessable and are owned by the Intermediate Partnership free and
clear of all liens, encumbrances, security interests, charges or claims
(except for such liens, encumbrances, security interests, charges or
claims as are not, individually or in the aggregate, material or except
as described in the Final Prospectus). All of the outstanding interests
of Bear Paw Investments have been duly authorized and validly issued
and are fully paid and non-assessable and are owned by the Intermediate
Partnership free and clear of any liens, encumbrances, security
interests, charges or claims (except for such liens, encumbrances,
security interests, charges or claims as are not, individually or in
the aggregate, material or except as described in the Final
Prospectus). All of the outstanding interests of Bear Paw Energy have
been duly authorized and validly issued and are fully paid and
non-assessable and are owned by Bear Paw Investments free and clear of
any liens, encumbrances, security interests, charges or claims (except
for such liens, encumbrances, security interests, charges or claims as
are not, individually or in the aggregate, material or except as
described in the Final Prospectus). All of the outstanding shares of
capital stock of Border Midwestern have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by
the Intermediate Partnership free and clear of any liens, encumbrances,
security interests, charges or claims (except for such liens,
encumbrances, security interests, charges or claims as are not,
individually or in the aggregate, material or except as described in
the Final Prospectus). All of the outstanding shares of capital stock
of Midwestern Gas have been duly authorized and validly issued and are
fully paid and non-assessable and are owned by Border Midwestern free
and clear of any liens, encumbrances, security interests, charges or
-23-
claims (except for such liens, encumbrances, security interests,
charges or claims as are not, individually or in the aggregate,
material or except as described in the Final Prospectus); provided such
counsel may qualify to her knowledge the opinions (i) as to due
authorization, valid issuance, full payment and non-assessability with
respect to Bear Paw Investments, Bear Paw Energy and Midwestern Gas and
(ii) as to liens, encumbrances, security interests, charges and claims
enforceable under the UCC with respect to Bear Paw Investments and Bear
Paw Energy.
In addition, such counsel shall state that in the course of
preparation by the Partnership of the Registration Statement and the Final
Prospectus, such counsel participated in conferences with officers and other
representatives of the Partnership and certain of the Subsidiaries,
representatives of the independent public accountants of the Partnership and, in
the case of the Final Prospectus, your representatives, at which the contents of
the Registration Statement, the Final Prospectus and related matters were
discussed. Such counsel shall also state that although she has not conducted any
independent investigation with regard to the information set forth in the
Registration Statement or the Final Prospectus (except with respect to the
foregoing opinions) and is not (except as aforesaid) passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained therein, on the basis of the foregoing and during the
course of her representation of Northern Plains, no facts have come to such
counsel's attention that cause such counsel to believe that the Registration
Statement or any amendment thereto on the date it became effective, or as
amended or supplemented at the time of purchase and the additional time of
purchase, as the case may be, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that, as of its date, the time
of purchase and the additional time of purchase, as the case may be, the Final
Prospectus or any further amendment or supplement thereto contained an untrue
statement of a material fact or omitted a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. In making such
statement, such counsel may state that she does not express any comment with
respect to the financial statements and related schedules and other financial
data included or incorporated by reference in the Registration Statement or in
the Final Prospectus or any further amendment or supplement thereto (including,
without limitation, statements relating to projected cash distributions to the
limited partners of the Partnership) or any statement contained therein or
omitted therefrom in reliance upon and in conformity with written information
furnished to the Partnership by the Underwriters through you expressly for use
therein.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of Nebraska, to the extent she deems proper and specified in such opinion,
upon the opinion of other counsel of good standing whom she believes to be
reliable and who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent she deems proper, on certificates of responsible
officers of the Partnership and public officials.
-24-
(iii) You shall have received from KPMG LLP, letters dated,
respectively, the date of this Agreement and the time of purchase and the
additional time of purchase, as the case may be, and addressed to the
Underwriters in the forms heretofore approved by the Underwriters.
(iv) You shall have received at the time of purchase and at
the additional time of purchase, as the case may be, the favorable opinion of
Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, dated the time of purchase
or the additional time of purchase, as the case may be, with respect to such
matters as may be reasonably requested by the Underwriters.
(v) All filings, if any, required by Rule 424(b) shall have
been timely made; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(vi) Since the date as of which information is given in the
Final Prospectus there shall not have been any change or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), earnings, businesses or properties of the Partnership or
Intermediate Partnership, taken as a whole, otherwise than as set forth or
contemplated in the Final Prospectus, the effect of which is, in your judgment,
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Units being delivered at the
time of purchase and the additional time of purchase, as the case may be, on the
terms and in the manner contemplated in the Final Prospectus.
(vii) There shall have been furnished to you at the time of
purchase and the additional time of purchase, as the case may be, certificates
satisfactory to you, signed on behalf of the Partnership by an authorized
officer thereof to the effect that:
(a) the representations and warranties of the
Partnership and the Intermediate Partnership in this Agreement are true
and correct in all material respects (except that all those
representations and warranties that are qualified as to their
materiality are true and correct in all respects) at and as of the time
of purchase and the additional time of purchase, as the case may be,
with the same effect as if made at the time of purchase and the
additional time of purchase, as the case may be, and the Partnership
has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the time of
purchase and the additional time of purchase, as the case may be;
(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Partnership's knowledge,
threatened; and
(c) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has been no
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Partnership and its
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary
-25-
course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(viii) The Registration Statement shall become effective, or
if Rule 430A under the Act is used, the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act, at or before 5:00
P.M., New York City time, on the business day after the date of this Agreement
unless a later time shall be agreed to by the Partnership and you in writing or
by telephone, confirmed in writing.
(ix) (A) The Registration Statement and all amendments
thereto, or modifications thereof, if any, shall not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and (B) the
Final Prospectus and all amendments or supplements thereto, or modifications
thereof, if any, shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they are
made, not misleading.
(x) The Partnership shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement and the Final Prospectus as of the time of
purchase and the additional time of purchase, as the case may be, as you may
reasonably request.
(xi) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may be, there
shall not have occurred any downgrading, nor shall any notice or announcement
have been given or made of (i) any intended or potential downgrading or (ii) any
review or possible change that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the Partnership or the Intermediate
Partnership by any "nationally recognized statistical rating organization," as
that term is defined in Rule 436(g)(2) under the Act.
(xii) The Units to be sold pursuant to this Agreement shall
have been duly authorized for listing on the New York Stock Exchange, subject
only to official notice of issuance, at the time of purchase or the additional
time of purchase, as the case may be, and satisfactory evidence of such actions
shall have been provided to the Underwriters.
(xiii) On or prior to the date hereof, the Partnership shall
have furnished to the Underwriters a letter substantially in the form of Exhibit
A hereto addressed to the Underwriters from Northern Plains, Pan Border,
Sundance Assets, L.P., PEC Midwest Inc. and each officer of the Partnership and
member of the Partnership Policy Committee who owns Common Units and each of the
former owners of Bear Paw Investments listed on Schedule B hereto.
(xiv) At or prior to the time of purchase and the additional
time of purchase, as the case may be, the Partnership shall have furnished to
the Underwriters waivers by each of Northern Plains and Pan Border of its
preemptive rights pursuant to Section 4.3 of the Partnership Agreement.
-26-
7. Effective Date of Agreement; Termination. This Agreement
shall become effective when the parties hereto have executed and delivered this
Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Units, if, since the time of execution of
this Agreement or the earlier respective dates as of which information is given
in the Registration Statement and the Final Prospectus, there has been any
material adverse and unfavorable change, financial or otherwise (other than as
referred to in the Registration Statement and the Final Prospectus), in the
earnings, businesses, condition or properties of the Partnership and the
Intermediate Partnership taken as a whole, which would, in your judgment or in
the judgment of such group of Underwriters, make it impracticable to market the
Units or, if at any time prior to the time of purchase or the additional time of
purchase, as the case may be, trading in securities on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market shall have
been suspended or limitations or minimum prices shall have been established on
the New York Stock Exchange, the American Stock Exchange or the NASDAQ National
Market or trading in the Partnership's securities on the New York Stock Exchange
shall have been suspended or limitations or minimum prices on the Partnership's
securities shall have been established on the New York Stock Exchange, or if a
banking moratorium shall have been declared either by the United States or New
York State authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or acts of terrorism involving
the United States or other national or international calamity or crisis of such
magnitude in its effect on the financial markets of the United States as, in
your judgment or in the judgment of such group of Underwriters, to make it
impracticable to market the Units.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Partnership and each other
Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Units, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Partnership or the Intermediate Partnership shall be unable to comply with any
of the terms of this Agreement, neither the Partnership nor the Intermediate
Partnership shall be under any obligation or liability under this Agreement
(except to the extent provided in Sections 4(g), 5 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Partnership or the
Intermediate Partnership under this Agreement (except to the extent provided in
Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections
6 and 7, if any Underwriter shall default in its obligation to take up and pay
for the Firm Units to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Units which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Units, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate number of Firm Units they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Units
agreed to be purchased by all such defaulting
-27-
Underwriters, as hereinafter provided. Such Units shall be taken up and paid for
by such non-defaulting Underwriter or Underwriters in such amount or amounts as
you may designate with the consent of each Underwriter so designated or, in the
event no such designation is made, such Units shall be taken up and paid for by
all non-defaulting Underwriters pro rata in proportion to the aggregate number
of Firm Units set forth opposite the names of such non-defaulting Underwriters
in Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Partnership agrees with the non-defaulting
Underwriters that it will not sell any Firm Units hereunder unless all of the
Firm Units are purchased by the Underwriters (or by substituted Underwriters
selected by you with the approval of the Partnership or selected by the
Partnership with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Partnership for a defaulting Underwriter or Underwriters
in accordance with the foregoing provision, the Partnership or you shall have
the right to postpone the time of purchase for a period not exceeding five
business days in order that any necessary changes in the Registration Statement
and Final Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 8 with like effect as
if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Firm Units which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Units which all Underwriters agreed to purchase hereunder, and if neither the
non-defaulting Underwriters nor the Partnership shall make arrangements within
the five business day period stated above for the purchase of all the Firm Units
which the defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall terminate without further act or deed and without any
liability on the part of the Partnership to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Partnership. Nothing in this paragraph, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
9. Indemnity and Contribution.
(i) The Partnership and the Intermediate Partnership,
jointly and severally, agree to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange Act, common
law or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in the Final Prospectus, any Preliminary Prospectus
or in the Registration Statement as originally filed or in any amendment or
supplement thereto, or arises out of or is based upon any omission or alleged
omission to state a material fact required to
-28-
be stated therein or necessary to make the statements made therein not
misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in and in conformity with information furnished in
writing by or on behalf of such Underwriter through you to the Partnership
expressly for use in such Registration Statement, such Preliminary Prospectus or
such Final Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in such Registration Statement, such Preliminary Prospectus or such
Final Prospectus or necessary to make such information not misleading.
If any action, suit or proceeding (together, a "Proceeding")
is brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Partnership and the Intermediate Partnership
pursuant to the foregoing paragraph (i), such Underwriter or such person shall
promptly notify the Partnership in writing of the institution of such Proceeding
and the Partnership shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify the Partnership shall not relieve the Partnership or the Intermediate
Partnership from any liability which the Partnership or the Intermediate
Partnership may have to any Underwriter or any such person or otherwise. Such
Underwriter or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
such Underwriter or such person unless the employment of such counsel shall have
been authorized in writing by the Partnership in connection with the defense of
such Proceeding or the Partnership shall not have, within a reasonable period of
time in light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to the
Partnership (in which case the Partnership shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties but
the Partnership may employ counsel and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of the
Partnership), in any of which events the reasonable fees and expenses of such
indemnified party or parties shall be borne by the Partnership and paid as
incurred (it being understood, however, that the Partnership shall not be liable
for the fees and expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The Partnership shall not be liable for any settlement of any such
Proceeding effected without its written consent but if settled with the written
consent of the Partnership, the Partnership and the Intermediate Partnership
agree to indemnify and hold harmless any Underwriter and any such person from
and against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
-29-
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such indemnified
party.
(ii) Each Underwriter severally, and not jointly,
agrees to indemnify, defend and hold harmless the Partnership and the
Intermediate Partnership, each member of the Partnership Policy Committee, each
officer of the Partnership who signed the Registration Statement, and each
person who controls the Partnership and the Intermediate Partnership within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any loss, damage, expense, liability or claim (including the reasonable
cost of investigation) which, jointly or severally, the Partnership, the
Intermediate Partnership or any such person may incur under the Act, the
Exchange Act, common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of such Underwriter through you
to the Partnership expressly for use in the Registration Statement, any
Preliminary Prospectus, the Final Prospectus or any amendment or supplement
thereto, or arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information required to be stated
in such Registration Statement, Preliminary Prospectus, Final Prospectus or any
amendment or supplement thereto or necessary to make such information not
misleading. The Partnership acknowledges that the statements set forth in the
last paragraph of the cover page of any Preliminary Prospectus and the Final
Prospectus regarding delivery of the Units and, under the heading
"Underwriting," (i) the table reflecting the Underwriters' participation in the
offering, (ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Prospectus and the Final Prospectus, constitute
the only information furnished in writing by or on behalf of the Underwriters
for inclusion in the Registration Statement, any Preliminary Prospectus or the
Final Prospectus.
If any Proceeding is brought against the
Partnership or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Partnership or
such person shall promptly notify such Underwriter in writing of the institution
of such Proceeding and such Underwriter shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses, provided, however, that
the omission to so notify such Underwriter shall not relieve such Underwriter
from any liability which such Underwriter may have to the Partnership or any
such person or otherwise. The Partnership or such person shall have the right to
employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Partnership or such person unless the
employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from or additional
to or in conflict with those available to such Underwriter (in which case such
Underwriter shall not have
-30-
the right to direct the defense of such Proceeding on behalf of the indemnified
party or parties, but such Underwriter may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of such Underwriter), in any of which events the reasonable fees and
expenses of such indemnified party or parties shall be borne by such Underwriter
and paid as incurred (it being understood, however, that such Underwriter shall
not be liable for the fees and expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). No Underwriter shall be liable for any
settlement of any such Proceeding effected without the written consent of such
Underwriter but if settled with the written consent of such Underwriter, such
Underwriter agrees to indemnify and hold harmless the Partnership and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding and does
not include an admission of fault, culpability or a failure to act, by or on
behalf of such indemnified party.
(iii) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (i) or (ii) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (a) in such proportion as is appropriate to reflect the
relative benefits received by the Partnership and the Intermediate Partnership
on the one hand and the Underwriters on the other hand from the offering of the
Units or (b) if the allocation provided by clause (a) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) above but also the relative fault of
the Partnership and the Intermediate Partnership on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, damages, expenses, liabilities or claims, as well as
any other relevant equitable considerations. The relative benefits received by
the Partnership and the Intermediate Partnership on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Partnership and the Intermediate Partnership and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price of the Units. The relative fault of the Partnership and
the Intermediate Partnership on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things,
-31-
whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the Partnership
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall be deemed
to include any legal or other fees or expenses reasonably incurred by such party
in connection with investigating, preparing to defend or defending any claim or
Proceeding.
(iv) The Partnership, the Intermediate Partnership
and the Underwriters, severally, agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in subsection (iii) above. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Units
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the aggregate amount of any losses, expenses or damages which
such Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(v) The indemnity and contribution agreements
contained in this Section 9 and the covenants, warranties and representations of
the Partnership and the Intermediate Partnership contained in this Agreement
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Underwriter, its directors and officers or any person
(including each partner, officer or director of such person) who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, or by or on behalf of the Partnership and the Intermediate
Partnership, each member of the Partnership Policy Committee, each officer of
the Partnership who signed the Registration Statement, and each person who
controls the Partnership within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and shall survive any termination of this Agreement or
the delivery of the Units. The Partnership, the Intermediate Partnership and
each Underwriter, severally, agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Partnership
and the Intermediate Partnership, against any member of the Partnership Policy
Committee, any officer of the Partnership who signed the Registration Statement,
or any person who controls the Partnership within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act in connection with the sale of the
Units, or in connection with the Registration Statement, any Preliminary
Prospectus or the Final Prospectus.
10. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by facsimile
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to UBS Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Syndicate Department and to Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, and, if to the
Partnership or the Intermediate Partnership, shall be sufficient in all respects
if delivered, sent or telefaxed to Xxxxx X. Place at (000) 000-0000 and
confirmed to her at (000) 000-0000.
-32-
11. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. Entire Agreement; Amendments and Waivers. This Agreement
constitutes the entire agreement between the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties, and there
are no warranties, representations or other agreements among the parties in
connection with the subject matter hereof except as set forth specifically
herein or contemplated hereby. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. The failure of a party to exercise any right or remedy shall not be
deemed or constitute a waiver of such right or remedy in the future. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (regardless of whether similar), nor shall
any such waiver constitute a continuing waiver unless otherwise expressly
provided. Each party to this Agreement agrees that (i) no other party to this
Agreement (including its agents and representatives) had made any
representation, warranty, covenant or agreement to or with such party relating
to the transactions contemplated hereby, other than those expressly set forth
herein, and (ii) such party has not relied upon any representation, warranty,
covenant or agreement relating to the transactions contemplated hereby, other
than those referred to in clause (i) above.
13. Parties at Interest. The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters and the Partnership
and to the extent provided in Section 9 hereof the controlling persons,
directors and officers referred to in such Section, and their respective
successors, assigns, heirs, personal representatives and executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from the Underwriters) shall acquire
or have any right under or by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the same
agreement among the parties.
15. Successors and Assigns. This Agreement shall be binding
upon the Underwriters, the Partnership, the Intermediate Partnership and their
successors and assigns and any successor or assign of any substantial portion of
the Partnership's, the Intermediate Partnership's or the Underwriters'
respective businesses and/or assets.
16. Miscellaneous. UBS Warburg LLC, an indirect, wholly-owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS Warburg LLC. Because UBS Warburg LLC
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect to
sales and purchases of securities. Securities sold, offered or recommended by
UBS Warburg LLC are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency and are not
otherwise an obligation or responsibility of a branch or agency.
-33-
17. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Partnership and the Intermediate Partnership consent to the jurisdiction of such
courts and personal service with respect thereto.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall constitute a binding agreement
among the Partnership, the Intermediate Partnership and the Underwriters,
severally.
-34-
Very truly yours,
NORTHERN BORDER PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------------
Title: Chief Executive Officer
----------------------------------------
NORTHERN BORDER INTERMEDIATE
LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------------
Title: Chief Executive Officer
-----------------------------------------
Signature Page for Underwriting Agreement
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
UBS WARBURG LLC
XXXXXXX XXXXX XXXXXX INC.
BY: UBS WARBURG LLC
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
-------------------------------------
Title: Executive Director
------------------------------------
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
-------------------------------------
Title: Director
------------------------------------
Signature Page for Underwriting Agreement
SCHEDULE A
Number of
Underwriter Firm Units
----------- ----------
UBS Warburg LLC 1,000,000
Xxxxxxx Xxxxx Barney Inc. 1,000,000
---------
Total 2,000,000
=========
1
SCHEDULE B
1. Xxxx X Xxxxxxxx, Xx.
2. Xxxxxxxxx Xxxxx
3. Xxxxxx Xxxxxxx
4. Xxxxxx Xxxxx
5. Xxxxx Xxxxx
6. Thom. Edelman Irrevocable Trust fbo Eliz. Edelman
7. Thom. Edelman Irrevocable Trust fbo Xxxxxxx Xxxxxxx
8. Bear Cub Investments, LLC
1
Exhibit A
Northern Border Partners, L.P.
Public Offering of Common Units
_________, 2002
UBS Warburg LLC
Xxxxxxx Xxxxx Barney Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed
Underwriting Agreement (the "
Underwriting Agreement"), between Northern
Border Partners, L.P., a Delaware limited partnership (the "Partnership"),
Northern Border Intermediate Limited Partnership, a Delaware limited
partnership, and you as the Underwriters named therein, relating to an
underwritten public offering of common units representing limited partner
interests (the "Common Units") of the Partnership.
In consideration for you entering into the
Underwriting
Agreement, the undersigned will not, without the prior written consent of UBS
Warburg LLC, offer, sell, contract to sell, pledge or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the undersigned or
any affiliate of the undersigned or any person in privity with the undersigned
or any affiliate of the undersigned), directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the
Securities and Exchange Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder with respect to, any Common Units of the Partnership or
any securities convertible into, or exercisable or exchangeable for such Common
Units, or publicly announce an intention to effect any such transaction, for a
period of ____ days after the date of the
Underwriting Agreement, other than
Common Units disposed of as bona fide gifts approved by UBS Warburg LLC.
A-1
If for any reason the
Underwriting Agreement shall be
terminated prior to the time of purchase or the additional time of purchase
(each as defined in the
Underwriting Agreement), the agreement set forth above
shall likewise be terminated.
Yours very truly,
-----------------------------------------------
[SIGNATURE OF OFFICER, DIRECTOR OR STOCKHOLDER]
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
[NAME AND ADDRESS OF OFFICER, DIRECTOR OR
XXXXXXXXXXX]
X-0
