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EXHIBIT 10.15
EIGHTH SUPPLEMENT
AMENDING NORTHERN BORDER PIPELINE COMPANY
GENERAL PARTNERSHIP AGREEMENT
DATED MAY 21, 1999
This Agreement is dated as of May 21, 1999 (the "Eighth Supplement") by
and among (i) the "Divesting Partners," consisting of TransCanada Border
PipeLine Ltd., a Nevada corporation and TransCan Northern Ltd., a Delaware
corporation; (ii) Northern Border Intermediate Limited Partnership, a Delaware
limited partnership ("NBILP"); and (iii) TC PipeLines Intermediate Limited
Partnership, a Delaware limited partnership ("TCILP").
WITNESSETH THAT:
WHEREAS, the Divesting Partners and NBILP are parties to that certain
General Partnership Agreement for Northern Border Pipeline Company, a Texas
general partnership (the "Partnership"), effective as of March 9, 1978, as
amended by (i) the "First Supplement," dated as of October 25, 1979 (as amended
by Agreement dated April 20, 1990), (ii) the Phase I Partnership Commitment
Agreement dated December 12, 1980, (iii) the "Second Supplement," dated as of
December 15, 1980 (as amended by Agreement dated April 20, 1990), (iv) the
"Third Supplement," dated October 1, 1981, (v) the "Fourth Supplement," dated
February 17, 1984, (vi) the "Fifth Supplement," dated April 20, 1990, (vii) the
"Sixth Supplement," dated April 19, 1991, and (viii) the "Seventh Supplement,"
dated September 23, 1993, such General Partnership Agreement, as amended or
supplemented, being herein referred to as the "Partnership Agreement"; and
WHEREAS, the Divesting Partners intend to transfer, pursuant to Section
10.1 of the Partnership Agreement, each of their respective partnership
interests in the Partnership to TCILP;
WHEREAS, to facilitate the admission of TCILP as a general partner in
the Partnership, the Divesting Partners, NBILP and TCILP desire to evidence
herein (i) the consent of NBILP to the transfer by the Divesting Partners of
their respective partnership interest in the Partnership to TCILP, (ii) the
admission of TCILP as a general partner in the Partnership, and (iii) certain
amendments to the Partnership Agreement; and
WHEREAS, NBILP and the members of the Management Committee of the
Partnership have unanimously consented to and approved the transfer, admission
and amendments referred to herein pursuant to an Agreement dated March 17, 1999,
by and among the general partners of NBILP, the Divesting Partners, the
Partnership, NBILP,
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Northern Border Partners, L.P., the members of the Management Committee of the
Partnership and the Operator.
NOW, THEREFORE, the Divesting Partners, NBILP and TCILP for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms
shall have the meanings set forth in the Partnership Agreement.
2. Consent of NBILP. NBILP hereby consents to the transfer by each of
the Divesting Partners to TCILP of its interest in and to the Partnership and
agrees that each such transfer shall be permitted notwithstanding the terms of
Section 10.5 of the Partnership Agreement or any other terms thereof that might
prohibit such transfer.
3. Admission of TCILP. The Divesting Partners and NBILP hereby consent
to the admission of TCILP as a partner in the Partnership (notwithstanding the
terms of Section 11 of the Partnership Agreement or any other terms thereof that
might restrict such admission of TCILP) and TCILP shall become a Partner in the
Partnership effective as of the closing date of the transactions contemplated by
that certain Registration Statement on Form S-1 (File No. 333-69947), as filed
with the Securities and Exchange Commission by TC PipeLines, L.P. and as amended
from time to time (hereinafter called the "Approval Date"). From and after the
Approval Date, TCILP agrees to be bound by all of the terms, obligations and
conditions of the Partnership Agreement. The Partnership shall pay the
distribution to its partners for the quarter ending June 30, 1999 (that would,
but for this sentence, be payable to TCILP) proportionately as between the
Divesting Partners, on the one hand, and TCILP, on the other hand, based on the
number of days these entities are actually partners of the Partnership during
the quarter ending June 30, 1999.
4. Amendment of Partnership Agreement. Effective the Approval Date, the
Divesting Partners, NBILP and TCILP hereby agree that the Partnership Agreement
shall be amended, effective as of the Approval Date, as follows:
(a) Section 1 of the Partnership Agreement is amended and is restated
in its entirety as follows:
1. Parties. The following are the parties to this Agreement:
1.1 Northern Border Intermediate Limited Partnership
(hereinafter referred to as "NBILP"), a limited partnership
organized under the laws of the State of Delaware with its
principal place of business located at 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000.
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1.2 TC PipeLines Intermediate Limited Partnership (hereinafter
called "TCILP") a limited partnership organized under the
laws of the State of Delaware with its principal place of
business located at Four Greenspoint Plaza, 00000
Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000.
(b) Section 2.45 of the Partnership Agreement is amended to delete the
reference to Sections 1.1 through 1.3 and replace it with "...Sections 1.1 and
1.2."
(c) Section 2 of the Partnership Agreement is amended to add the
following:
2.61 Eighth Supplement. The Agreement dated as of May 21, 1999
among the Partners.
(d) Section 3.6.1 of the Partnership Agreement is amended and restated
to read as follows (and TCILP and NBILP shall each be deemed, as of the Approval
Date, to have made the representations set forth in Section 3.6.1):
3.6.1 Representations and Warranties Concerning 1999 Change in
Composition of Partnership. Each Partner represents and
warrants that the execution and delivery by such Partner
of the Seventh Supplement, the change in the composition
of the Partnership to admit NBILP in lieu of the Divesting
Partners, and the performance by such Partner of its
obligations under the Partnership Agreement, as amended,
will not contravene any provision of, or constitute a
default under, any indenture, mortgage or other agreement
of such Partner or any order of any court, commission or
government agency having jurisdiction. Each Partner
represents and warrants that the execution and delivery by
such Partner of the Eighth Supplement, the change in the
composition of the Partnership to admit TCILP in lieu of
the Divesting Partners, and the performance by such
Partner of its obligations under the Partnership
Agreement, as amended, will not contravene any provision
of, or constitute a default under, any indenture, mortgage
or other agreement of such Partner or any order of any
court, commission or government agency having
jurisdiction. Each Partner further (i) represents and
warrants that it is a limited partnership duly organized
and existing under the laws of its state of incorporation
or organization, and (ii) covenants that it will do or
cause to be done all
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things necessary to preserve and keep in full force and
effect its limited partnership existence for so long as it
shall remain a Partner.
(e) Section 7.6 of the Partnership Agreement is amended by amending the
last paragraph to read in its entirety as follows:
The Parties intend that all tax items arising from or
attributable to any change in the tax basis of Partnership
properties occasioned by the admission of NBILP in 1993, or TCILP
in 1999, as a Partner and related transaction shall be allocated
solely to NBILP or TCILP, respectively. Accordingly, to the extent
deemed necessary by the Management Committee, income, gain, loss
and deduction shall be allocated for federal (and any applicable
state) income tax purposes among the Partners in such manner (using
any reasonable method, including curative allocations, consistent
with Section 704(c) of the Internal Revenue Code of 1986 and the
regulations promulgated or proposed thereunder) as will achieve
such intent.
(f) Sections 8.2.1 and 8.2.5(ii) of the Partnership Agreement are
amended and restated in their entirety to read as follows:
8.2.1 The Management Committee shall consist of four members
(the "Representatives"), one of whom shall be designated
by TCILP and three of whom shall be designated by NBILP
with one Representative being selected by each general
partner of NBILP. Each Partner shall designate, by
notice to each other Partner and the Partnership, its
Representative(s) to serve on the Management Committee.
By like notice, each Partner may designate an alternate
Representative for each Representative appointed by it,
who shall have authority to act on behalf of such
appointed Representative in the event of such appointed
Representative's absence or inability to serve. Any
Partner may at any time, by written notice to all other
Partners and to the Partnership, remove its appointed
Representative(s) on the Management Committee and
designate a new Representative(s).
8.2.5(ii) the Partner's Percentages on all matters determined on
or after the Commitment Date. For this purpose, the
Representative(s) designated by NBILP shall have, in the
aggregate, a number of votes equal to the Partner's
Percentage of NBILP. Until NBILP provides written
notification to the other Partner(s) of a change in
allocation of its number of votes, the Representative of
NBILP
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selected by Northern Plains shall have a number of
votes equal to 35%; the Representative of NBILP
selected by Pan Border Gas Company shall have a
number of votes equal to 22.75%; and the
Representative of NBILP selected by Northwest Border
Pipeline Company shall have a number of votes equal
to 12.25%. The representative appointed by TCILP
shall have a number of votes equal to 30%. The
majority of such votes cast by the Representatives of
the Partners shall constitute a majority of the
Partner's Percentages. Each Representative agrees not
to enter into a voting agreement with another
Representative pursuant to which such Representatives
would vote as a block, but this sentence shall not be
construed to prohibit two or more Representatives
from agreeing with each other concerning particular
projects, issues or subjects.
(g) Section 8.2.6 is hereby amended to replace the word
"Section 8.5.10" with "Section 8.4.10."
(h) Section 8.4.1 is hereby amended to replace the words
"Section 8.5.2 and Section 8.5.10," with "Section
8.4.2 and Section 8.4.10."
(i) Section 8.4.5 is hereby amended to replace the words
"Section 8.5 with "Section 8.4."
(j) Section 8.4.9 is hereby amended to replace the word
"Section 8.5" with "Section 8.4."
(k) Section 8.4.10 is hereby amended to replace the words
"Section 8.5" with "Section 8.4."
(l) Section 10.6 of the Partnership Agreement is amended
to add the following as a second paragraph:
"If the general partner of TCILP desires to transfer
its general partnership interest in TCILP to a party
other than an Affiliate of such general partner, such
selling general partner of TCILP must first provide
NBILP and the general partners of NBILP with notice
of such intent to transfer and for a period of 30
days following the receipt by NBILP and the general
partners of NBILP, NBILP and/or any general partner
of NBILP shall have the right to submit an offer for
the general partner interest of such selling general
partner of TCILP (and any other interests in TCILP
proposed to be sold by such selling general partner
of TCILP). Such selling general partner of TCILP
shall have no
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obligation to consider or accept any offers received
from NBILP and/or any general partner of NBILP, and
from and after such 30 day period, such selling
general partner of TCILP shall be free to consummate
the proposed transaction referred to in its notices
to NBILP and the general partners of NBILP."
5. Amendment of the Partnership Agreement Effective March 17, 1999. The parties
affirm that effective March 17, 1999, Section 9 of the Partnership Agreement was
amended to add the following:
9.3 Business Opportunities. The Partners and their
Affiliates are free to pursue any business
opportunity without first offering such business
opportunity to the Partnership (and such pursuit
shall not be a breach of any duty to the Partnership
or to any other Partner), except that no Partner and
no Affiliate of a Partner may pursue the project
known as Project 2000 filed with the Federal Energy
Regulatory in Docket No. CP99-21 or any business
opportunity that consists of an expansion, addition,
betterment, improvement, renewal or replacement of
the Line as it existed on January 15, 1999 (the
"Effective Date") unless the party desiring to pursue
such opportunity first offers to the Partnership the
opportunity to pursue such business opportunity and
the Partnership declines to do so. The terms
"expansion, addition, betterment, improvement,
renewal or replacement" shall not include any
extension of the Line beyond its terminus as it
existed on the Effective Date or the construction or
acquisition of any pipeline (including any lateral or
any other extension) that connects with the Line as
it existed on the Effective Date. The parties hereto
agree that the waivers and agreements in this Section
9.3 constitute an agreement among the partners of the
Partnership that governs the management of the
business and affairs of the Partnership and the
relationship among the Partners and the Partnership,
as contemplated by Article 6132b-1.03 of the Texas
Revised Partnership Act. The parties hereto further
agree that the waivers and agreements in this Section
9.3 identify certain types and categories of
activities which do not violate the duty of loyalty
to the Partnership, and that such types and
categories and the waivers and agreements in this
Section 9.3 are not manifestly unreasonable.
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6. Miscellaneous.
(a) Except as amended hereby, the terms and provisions of the
Partnership Agreement shall remain in full force and effect.
(b) The Eighth Supplement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(c) Each party hereto represents and warrants to every other party
hereto that (i) it has the full corporate or partnership power and authority to
execute and deliver this Eighth Supplement and to consummate the transactions
contemplated hereunder, (ii) the execution, delivery and performance by such
party of this Eighth Supplement has been duly authorized by all necessary
corporate or partnership action on the part of such party, and (iii) this Eighth
Supplement has been duly executed and delivered by such party and constitutes
the legal, valid and binding obligation of such party, enforceable against such
party in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have caused this Eighth
Supplement to be executed by their respective duly authorized officers.
TRANSCANADA BORDER PIPELINE LTD.
(Divesting Partner)
By: /s/ Xxxx XxxXxxxxx By: /s/ Rhondda X.X. Xxxxx
Name: Xxxx XxxXxxxxx Name: Rhondda X.X. Xxxxx
Title: Vice President Title: Secretary
TRANSCAN NORTHERN LTD.
(Divesting Partner)
By: /s/ Xxxx XxxXxxxxx By: /s/ Rhondda X.X. Xxxxx
Name: Xxxx XxxXxxxxx Name: Rhondda X.X. Xxxxx
Title: Vice President Title: Secretary
NORTHERN BORDER INTERMEDIATE LIMITED
PARTNERSHIP (NBILP)
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chief Financial and Accounting Officer
TC PIPELINES INTERMEDIATE LIMITED
PARTNERSHIP (TCILP)
By: TC PipeLines GP, Inc., its General
Partner
By: /s/ Xxxx XxxXxxxxx By: /s/ Rhondda X.X. Xxxxx
Name: Xxxx XxxXxxxxx Name: Rhondda X.X. Xxxxx
Title: Vice President, Business Development Title: Secretary
