EXHIBIT 1
Northern Border Partners, L.P.
287,096
Common Units
Representing Limited Partner Interests
UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
New York, New York
October 15, 2001
UBS Warburg LLC
299 Park Avenue
New York, New York 10071
Ladies and Gentlemen:
The unitholders of Northern Border Partners, L.P., a limited
partnership organized under the laws of Delaware (the "Partnership"), named in
Schedule A annexed hereto (the "Selling Unitholders") propose to sell, severally
and jointly, to UBS Warburg LLC (the "Underwriter"), an aggregate of 287,096
Common Units ("Common Units") representing limited partner interests in the
Partnership (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. 333-63566)
(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 the 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. "Final
Prospectus" shall mean the prospectus supplement relating to the Units and the
offering thereof that is first filed pursuant to Rule 424(b) 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 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 or the Final
Prospectus, as the case may be; any reference in this Agreement to the
Registration Statement, the Basic 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 or the Final Prospectus, as the
case may be; and any reference to any amendment or supplement to the
Registration Statement,
the Basic 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 or the Final Prospectus or any amendment or supplement thereto.
The Partnership, Northern Border Intermediate Limited Partnership, a
Delaware limited partnership (the "Intermediate Partnership"), and the Selling
Unitholders, acting severally and jointly, confirm as follows their agreements
with the Underwriter:
1. Sale and Purchase. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Selling Unitholders agree, severally and jointly, to sell to the Underwriter the
number of Units set forth opposite such Selling Unitholder's name in Schedule A
attached hereto and the Underwriter agrees to purchase from the Selling
Unitholders, at a purchase price of $38.35 per Common Unit, the Units. It is
understood that the Underwriter proposes to offer the Units for sale to the
public as set forth in the Final Prospectus.
2. Payment and Delivery. Payment of the purchase price for the Units
shall be made to the respective accounts of the Selling Unitholders by Federal
Funds wire transfer, against delivery of the Units to you for the account of the
Underwriter. Each Selling Unitholder shall provide to the Underwriter individual
wire transfer instructions on or before October 17, 2001. Such payment and
delivery shall be made at 10:00 A.M., New York City time, on October 18, 2001
(unless another time shall be agreed to in writing by you, the Partnership and
the Selling Unitholders). The time at which such payment and delivery of the
Units are actually made is hereinafter sometimes called the time of purchase.
3. Representations and Warranties.
(i) The Partnership and the Intermediate Partnership, jointly
and severally represent and warrant to, and agree with, the Underwriter 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 thereto, including any preliminary prospectus
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
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Basic Prospectus, in accordance with Rules 430A and 424(b). 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 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. As filed, such Final Prospectus shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent the Underwriter 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, did, and when the Final Prospectus is first filed in
accordance with Rule 424(b) and at the time of purchase, 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) and at the time of
purchase, 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 or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Partnership by the Underwriter or by or on
behalf of any Selling Unitholder through any Selling Unitholder
specifically for inclusion in the Registration Statement 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 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, 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
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Prospectus. Each of the Subsidiaries is, and at the time of purchase
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 or the 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 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,
claims or encumbrances (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, equities, 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, claims or encumbrances (except for such
liens, encumbrances, security interests, equities, 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, claims or encumbrances (except
for such liens, encumbrances, security interests, equities, 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, claims or encumbrances (except for such
liens, encumbrances, security interests, equities, 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, claims or
encumbrances (except for such liens, encumbrances, security interests,
equities, 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, claims or encumbrances (except for such liens, encumbrances,
security interests, equities, 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
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Northern Border Pipeline free and clear of any liens, claims or
encumbrances (except for such liens, encumbrances, security interests,
equities, 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
Williams Companies, Inc., a Delaware corporation ("Williams")
(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 Underwriter, and no
changes therein will be made subsequent to the date hereof and prior to
the time of purchase.
(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;
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 authorized by the Partnership
Agreement, were
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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 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, equities, charges or claims
(except for such liens, encumbrances, security interests, equities,
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 Williams 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, 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
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businesses in all material respects as described in the Final
Prospectus, free and clear of all liens, claims, encumbrances 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 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 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 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, 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 Underwriter, 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 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
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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; and, to the best
of the Partnership's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(n) Arthur Andersen LLP, who have certified certain
financial statements of 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 the General Partners in
accordance with its terms, except as the enforceability of 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.
(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 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 Section 8.3(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
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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 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 (the
"Investment Company Act"), and the rules and regulations thereunder;
(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 business
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.
(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.
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(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 any and 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 the business, 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 and 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
-10-
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, including the Units to be sold
by the Selling Unitholders pursuant to this Agreement.
(ii) Each Selling Unitholder, severally and jointly,
represents and warrants to the Underwriter that:
(a) Such Selling Unitholder is the record and
beneficial owner of the Units to be sold by it hereunder free and clear
of all liens, encumbrances, equities and claims and has duly endorsed
such Units in blank, and, assuming that (1) the Underwriter purchases
such Units from such Selling Unitholder without notice of any adverse
claim (within the meaning of Section 8-105 of the New York Uniform
Commercial Code ("UCC")), (2) the Underwriter makes payment therefor as
provided herein, (3) such Units are delivered to you in accordance with
the provisions of the Custody Agreement (as defined below) and (4) the
Underwriter obtains control of the Units (as provided in Section
8-106(b) of the UCC), the Underwriter will have acquired all of the
rights and interest in such Units, free of any adverse claim (within
the meaning of Section 8-105 of the UCC).
(b) Such Selling Unitholder has not taken, directly
or indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Partnership to facilitate the sale or resale of the
Units.
(c) Such Selling Unitholder has and at the time of
purchase will have, the requisite legal right and capacity or power and
authority, and no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
by such Selling Unitholder of the transactions contemplated herein,
except such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Units by the Underwriter and such
other approvals as have been obtained.
(d) Neither the sale of the Units being sold by such
Selling Unitholder nor the consummation of any other of the
transactions herein contemplated by such Selling Unitholder or the
fulfillment of the terms hereof by such Selling Unitholder will
conflict with, result in a breach or violation of, or constitute a
default under (i) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to
-11-
which the Selling Unitholder (or any affiliate of any Selling
Unitholder) is a party or by which the Selling Unitholder is bound or
to which any of the property or assets of the Selling Unitholder is
subject, (ii) the charter or by-laws or other organizational documents
of such Selling Unitholder, as applicable, or (iii) any law to which
such Selling Unitholder (or any affiliate of any Selling Unitholder) is
bound, or any judgment, order or decree applicable to such Selling
Unitholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over such Selling
Unitholder, except in the case of clauses (i) and (iii), as would not
have a material adverse effect on such Selling Unitholder's performance
of its obligations hereunder.
(e) This Agreement has been, and at the time of
purchase the Custody Agreement among Equiserve Trust Company, N.A., as
custodian (the "Custodian"), and such Selling Unitholders (the "Custody
Agreement") will have been, duly executed and delivered by such Selling
Unitholder and each constitutes or will constitute, as applicable, a
valid and binding agreement of such Selling Unitholder. At the time of
purchase, the Custody Agreement will be enforceable against such
Selling Unitholder in accordance with its terms except as the
enforceability of the Custody Agreement may be affected by bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and general equitable
principles.
(f) The sale of Units by such Selling Unitholder
pursuant hereto is not prompted by any information concerning the
Partnership or any of the Subsidiaries which is not set forth in the
Final Prospectus or any supplement thereto.
(g) The information in the Final Prospectus under the
caption "Principal and Selling Unitholders" which specifically relates
to such Selling Unitholder does not, and will not at the time of
purchase, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances in which
they were made, not misleading.
Any certificate signed by any officer of any of the Selling
Unitholders, and delivered to the Underwriter or counsel for the Underwriter in
connection with the offering of the Units shall be deemed a representation and
warranty by such Selling Unitholder, severally and jointly, as to matters
covered thereby, to the Underwriter.
4. Certain Covenants.
(i) The Partnership and the Intermediate Partnership agree
with the Underwriter:
(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
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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 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 counsel for
the Underwriter 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 the Intermediate Partnership, 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 counsel for
the Underwriter shall not previously have been advised or to which,
after you and counsel for the Underwriter 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
-13-
required by the Act to be delivered in connection with sales of the
Units by the Underwriter or any dealer, the Partnership and the
Intermediate Partnership will expeditiously deliver to the Underwriter
and each dealer, without charge but with any printing or delivery
expenses to be paid by the Selling Unitholders as set forth below in
Section 4(ii)(c), as many copies of the Final Prospectus (and of any
amendment or supplement thereto) as you may 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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriter
and dealers a reasonable number of copies thereof, at the expense of
the Selling Unitholders if such supplement is to the prospectus
supplement relating to the offering of the Units. In the event that the
Partnership or the Intermediate Partnership and the Underwriter 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; and
(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.
(ii) Each Selling Unitholder agrees, severally and jointly,
with the Underwriter:
(a) not to take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Units; and
(b) to advise you promptly, and if requested by you,
will confirm such advice in writing, so long as delivery of a
prospectus relating to the Units by an underwriter or dealer may be
required under the Act, of (i) any material change in the Partnership's
condition (financial or otherwise), prospects, earnings, business or
-14-
properties which comes to the attention of such Selling Unitholder,
(ii) any change in information in the Registration Statement or the
Final Prospectus relating to such Selling Unitholder or (iii) any new
material information relating to the Partnership or relating to any
matter stated in the Final Prospectus which comes to the attention of
such Selling Unitholder; and
(c) to pay all expenses, fees and taxes (other than
any transfer taxes and fees and disbursements of counsel for the
Underwriter except as set forth under Section 5 hereof) in connection
with (i) the preparation and filing of the Final Prospectus, and any
supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriter and to dealers (including costs of mailing
and shipment), other than an amendment to the Registration Statement
required in order for the Partnership to discharge its obligations
under the Acquisition Agreement (as defined herein), (ii) the issuance,
sale and delivery of the Units and (iii) the determination of
eligibility of the Units for investment under state law (including the
legal fees and other disbursements of counsel to the Underwriter) and
the printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriter and to dealers.
5. Reimbursement of Expenses.
(i) If the Units are not delivered for any reason other than
the termination of this Agreement pursuant to the first two paragraphs of
Section 7 hereof, the Selling Unitholders shall, in addition to paying the
amounts described in Section 4(ii)(c) hereof, reimburse the Underwriter for all
of its out-of-pocket expenses, including the fees and disbursements of its
counsel.
If the Selling Unitholders are required to make any payments to the
Underwriter under this Section 5(i) as a result of the inaccuracy of a
representation or warranty hereunder of the Partnership or the Intermediate
Partnership, the failure of the Partnership or the Intermediate Partnership to
comply with their obligations hereunder or the failure to satisfy the conditions
set forth in Sections 6(i), 6(ii), 6(iv), 6(vi), 6(vii), 6(viii), 6(ix), 6(x),
6(xii) (but only insofar as such provision applies to the Partnership) and
6(xiv), the Partnership shall reimburse the Selling Unitholder on demand for the
amounts paid to the Underwriter under this Section 5(i).
(ii) In addition to paying the amounts described in Sections
4(ii)(c) and 5(i) hereof, the Selling Unitholders shall reimburse the
Partnership and the Intermediate Partnership on demand for all out-of-pocket
expenses, fees and taxes incurred by the Partnership or the Intermediate
Partnership in connection with the offering of the Units that would not have
otherwise been incurred by the Partnership or the Intermediate Partnership
(excluding amounts incurred for the services provided by any officers, members
of the Partnership Policy Committee, directors or employees of the Partnership,
the Intermediate Partnership or their affiliates).
6. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties set forth in this Agreement on the part of the Partnership and the
Selling Unitholders on the date hereof
-15-
and at the time of purchase (unless previously waived), the performance by the
Partnership of its obligations hereunder and to the following additional
conditions precedent:
(i) The Partnership shall have requested and caused Vinson &
Elkins L.L.P., counsel for the Partnership, to have furnished to you their
opinion, dated the time of purchase, and addressed to the Underwriter, to the
effect that:
(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 business 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 State of 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,
the State of Texas is the only jurisdiction 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
-16-
owned of record by the General Partners free and clear of all liens,
encumbrances, security interests, equities, 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 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;
(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, equities, 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 Uniform Commercial Code 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 will be the only limited partner interests of the
Partnership that are issued and outstanding immediately following the
closing under this Agreement; the Units, when issued to the Selling
Unitholders, were authorized by the Partnership Agreement and were
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 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 Williams 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
-17-
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 July 27, 2001; the Final Prospectus was filed with the
Commission pursuant to subparagraph (2) of Rule 424(b) on October 16,
2001; and no stop order suspending the 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 (other than the financial
statements and related schedules or other financial or statistical data
and the projected data included therein, as to which we express no
opinion) comply as to form in all material respects with the
requirements of the Act;
(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 October 16, 2001, 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
-18-
(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 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, 2000 (the "2000 10-K") or any report filed by the Partnership with
the Commission subsequent to the filing of the 2000 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 (the "Acquisition Agreement"), 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; 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;
-19-
(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 Common 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, 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 business 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
(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.
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 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 or the time of purchase 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
Underwriter through you expressly for use therein. Such opinion shall state that
the Selling Unitholders are entitled to rely on the statements in this
paragraph.
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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 Underwriter 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 (b)
include any supplements thereto at the time of purchase.
(ii) The Partnership shall have requested and caused Janet K.
Place, Esq., General Counsel of Northern Plains, to have furnished to you her
opinion with respect to the Common Units, dated the time of purchase and
addressed to the Underwriter, to the effect that:
(a) Other than as set forth 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
business as it is 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 business 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.
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(c) The Partnership and each of the Subsidiaries (1)
is in compliance with any and all applicable Environmental Laws, (2)
has received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct its business 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 Section 8.3(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 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 date hereof, and except as may
otherwise be disclosed in the Final Prospectus, the Partnership has not
(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, claims,
encumbrances 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 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
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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 business 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 or the 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, claims or encumbrances (except for such
liens, encumbrances, security interests, equities, 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, claims or encumbrances (except for such
liens, encumbrances, security interests, equities, 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, claims or encumbrances (except
for such liens, encumbrances, security interests, equities, 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, claims or encumbrances (except for such
liens, encumbrances, security interests, equities, 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, claims or
encumbrances (except for such liens, encumbrances, security interests,
equities, 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
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validly issued and are fully paid and non-assessable and are owned by
Border Midwestern free and clear of any liens, claims or encumbrances
(except for such liens, encumbrances, security interests, equities,
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 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, 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 or the time of purchase, 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 Underwriter through you expressly for use therein. Such opinion shall also
state that the Selling Unitholders are entitled to rely on the statements in
this paragraph.
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 Underwriter and (B) as
to matters of fact, to the extent she deems proper, on certificates of
responsible officers of the Partnership and public officials.
(iii) The Selling Unitholders shall have requested and caused
O'Sullivan LLP, counsel to the Selling Unitholders, to have furnished to you
their opinion dated the time of purchase, and addressed to the Underwriter, to
the effect that:
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(a) This Agreement and the Custody Agreement have
been duly authorized, executed and delivered by each of the Selling
Unitholders, and each of the Selling Unitholders has the requisite
power and authority to sell, transfer and deliver in the manner
provided in this Agreement the Units being sold by the Selling
Unitholders hereunder;
(b) Assuming, without any investigation, the accuracy
and completeness of the information contained in the Final Prospectus
under the caption "Principal and Selling Unitholders," the statements
therein, insofar as such statements relate solely to the Selling
Unitholders, appear on their face to be appropriately responsive in all
material respects to the requirements of Item 507 of Regulation S-K
promulgated under the Act.
(c) No consent, approval, authorization or order of
any federal or New York court or governmental agency or body is
required for the consummation by each of the Selling Unitholders of the
transactions contemplated herein, except such as may have been obtained
under the Act and such as may be required under the Act, the state
securities or blue sky laws of any jurisdiction and the rules of the
National Association of Securities Dealers, Inc. in connection with the
sale of Units by the Selling Unitholders to the Underwriter hereunder
and the purchase and distribution thereof by the Underwriter and such
other approvals (specified in such opinion) as have been obtained;
(d) Neither the sale of the Units nor the
consummation of any other of the transactions herein contemplated by
each of the Selling Unitholders nor the fulfillment of the terms hereof
by each of the Selling Unitholders will conflict with, result in a
breach or violation of, or constitute a default under (i) any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which each of the Selling Unitholders is a party or by
which each of the Selling Unitholders is bound or to which any of the
property or assets of each of the Selling Unitholders is subject, which
has been identified in an officer's certificate to such counsel as
being material, (ii) in the case of Cub Investment, LLC, its
certificate of formation, operating agreement, or bylaws, (iii) in the
case of Haddington/Chase Energy Partners (Bear Paw) LP, its certificate
of limited partnership or limited partnership agreement, or (iv) any
Applicable Law or any judgment, order or decree known to such counsel
to be applicable to the Selling Unitholders of any New York or federal
court or administrative or governmental agency having jurisdiction over
the Selling Unitholders under Applicable Law (with Applicable Law
defined in such opinion to mean the Delaware Limited Liability Company
Act, the Delaware Revised Uniform Limited Partnership Act and those
statutes, rules and regulations of the State of New York and the United
States of America, which, in such counsel's experience, are typically
applicable to offerings of the type contemplated by this Agreement,
other than the United States federal securities laws, the state
securities or blue sky laws, antifraud laws, and the rules and
regulations of the National Association of Securities Dealers, Inc.);
and
(e) Assuming that (i) the Underwriter purchases the
Units from each of the Selling Unitholders without notice of any
adverse claim (within the meaning of Section 8-105 of the UCC), (ii)
the Underwriter makes payment therefor as provided
-25-
herein, (iii) the Units to be sold by the Selling Unitholders are
delivered to you in accordance with the provisions of the Custody
Agreement and (iv) the Underwriter obtains control of the Units being
sold by the Selling Unitholders (as provided in Section 8-106(b) of the
UCC), the Underwriter will have acquired all of the Selling
Unitholders' respective rights and interest in such Units free of any
adverse claim (within the meaning of Section 8-105 of the UCC).
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Selling Unitholders and public officials.
(iv) You shall have received from Arthur Andersen LLP, letters
dated, respectively, the date of this Agreement and the time of purchase, and
addressed to the Underwriter and the Selling Unitholders (with reproduced copies
for each of the Selling Unitholders and the Underwriter) in the forms heretofore
approved by the Underwriter.
(v) You shall have received at the time of purchase, the
favorable opinion of Andrews & Kurth L.L.P., counsel for the Underwriter, dated
the time of purchase, with respect to such matters as may be reasonably
requested by the Underwriter.
(vi) 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.
(vii) 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, business 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, in any such case described in clause
(i) or (ii), 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 Common Units being delivered at such time of purchase on the terms and in
the manner contemplated in the Final Prospectus;
(viii) There shall have been furnished to you at such time of
purchase 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 with the same effect as if made at the time of purchase 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;
(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
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(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 course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(ix) 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, the Selling Unitholders and
you in writing or by telephone, confirmed in writing; provided, however, that
the Partnership, the Selling Unitholders and you may from time to time agree on
a later date.
(x) (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.
(xi) Each Selling Unitholder shall have furnished to you an
executed copy of the Custody Agreement delivered by such Selling Unitholder to
the Custodian.
(xii) The Partnership and the Selling Unitholders 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 as you may reasonably request.
(xiii) Each of the Selling Unitholders will at the time of
purchase deliver to you a certificate of the Selling Unitholders to the effect
that the representations and the warranties of such Selling Unitholder as set
forth in this Agreement are true and correct in all material respects as of such
date.
(xiv) Between the time of execution of this Agreement and the
time of purchase, 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.
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 Underwriter hereunder shall be subject to
termination in your absolute discretion, if, since the time of execution of this
Agreement or the respective dates
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as of which information is given in the Registration Statement and the Final
Prospectus, (y) 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, business, condition or properties of
the Partnership and the Intermediate Partnership taken as a whole, which would,
in your judgment, make it impracticable to market the Units or, if at any time
prior to the time of purchase, trading in securities on the NYSE, the American
Stock Exchange or the NASDAQ National Market shall have been suspended or
limitations or minimum prices shall have been established on the NYSE, the
American Stock Exchange or the NASDAQ National Market 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 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, to make it impracticable to market the Units.
If you elect to terminate this Agreement as provided in this Section
7, the Partnership and the Selling Unitholders shall be notified promptly by
letter or telegram.
If the sale to the Underwriter of the Units, as contemplated by this
Agreement, is not carried out by the Underwriter for any reason permitted under
this Agreement or if such sale is not carried out because the Partnership or the
Selling Unitholders shall be unable to comply with any of the terms of this
Agreement, the Partnership and the Selling Unitholders shall not be under any
obligation or liability under this Agreement (except to the extent provided in
Sections 4(ii)(c), 5 and 8 hereof), and the Underwriter shall be under no
obligation or liability to the Partnership and the Selling Unitholders under
this Agreement (except to the extent provided in Section 8 hereof).
8. Indemnity and Contribution.
(i) The Partnership agrees to indemnify, defend and hold
harmless the Underwriter, its partners, directors and officers, and any person
who controls the 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, the 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 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 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 the Underwriter to the Partnership expressly for use in such
Registration Statement 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 or
such Final Prospectus or necessary to make such information not misleading.
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(ii) The Selling Unitholders, severally and jointly, agree to
indemnify and hold harmless the Partnership, each member of the Partnership
Policy Committee, each officer of the Partnership who signed the Registration
Statement, the Underwriter, the directors, officers, employees and agents of the
Underwriter and each person who controls the Partnership or the Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Partnership to the
Underwriter but only with respect to any loss, damage, expense, liability or
claim arising out of or 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 any Selling Unitholder for use with
reference to such Selling Unitholder expressly for use in the Registration
Statement or Final Prospectus. The Underwriter and the Partnership acknowledge
that the statements with respect to the Selling Unitholders set forth under the
caption "Principal and Selling Unitholders" in the Final Prospectus constitute
the only information furnished in writing by or on behalf of the Selling
Unitholders for inclusion in the Final Prospectus. Notwithstanding the
foregoing, it is expressly agreed that no Selling Unitholder shall be
responsible, either pursuant to the indemnity and contribution provisions of
this Section 8 or as a result of any breach of this Agreement, for losses,
expenses, liability or claims arising out of or based upon such untrue statement
or omission or allegation thereof based upon information furnished by any party
other than such Selling Unitholder and, in any event, no Selling Unitholder
shall be responsible, either pursuant to the indemnity and contribution
provisions of this Section 8 or as a result of any breach of this Agreement, for
losses, expenses, liability or claims for an amount in excess of the proceeds to
be received by such Selling Unitholder (before deducting expenses) from the sale
of the Units hereunder. This indemnity agreement will be in addition to any
liability which the Selling Unitholder may otherwise have.
If any action, suit or proceeding (together, a "Proceeding") is
brought against any person in respect of which indemnity may be sought against
the Partnership and/or the Selling Unitholders pursuant to the foregoing
paragraphs (i) and (ii), such person shall promptly notify the Partnership
and/or the Selling Unitholders in writing of the institution of such Proceeding
and the Partnership and/or the Selling Unitholders 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 and/or the Selling Unitholders
shall not relieve the Partnership and/or the Selling Unitholders from any
liability which the Partnership and/or the Selling Unitholders may have to any
such person or otherwise. Such indemnified 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 person unless the employment of such counsel
shall have been authorized in writing by the Partnership and/or the Selling
Unitholders in connection with the defense of such Proceeding or the Partnership
and/or the Selling Unitholders 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 and/or the Selling Unitholders (in which case the Partnership and/or
the Selling Unitholders shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties but the Partnership
and/or the Selling Unitholders 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 and/or the Selling Unitholders), in any of which events the
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reasonable fees and expenses shall be borne by the Partnership and/or the
Selling Unitholders and paid as incurred (it being understood, however, that the
Partnership and/or the Selling Unitholders shall not be liable for the 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 and/or the Selling Unitholders 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 and/or the Selling
Unitholders, the Partnership and/or the Selling Unitholders agree to indemnify
and hold harmless 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) The Underwriter agrees to indemnify, defend and hold
harmless the 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 the Selling Unitholders, their partners,
members, managers, directors and officers and any person who controls the
Selling Unitholders 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 and the Selling Unitholders 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 the Underwriter to the
Partnership expressly for use in the Registration Statement, 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,
Final Prospectus or any amendment or supplement thereto or necessary to make
such information not misleading. The Partnership and the Selling Unitholders
acknowledge that the statements set forth in the last paragraph of the cover
page of the Final Prospectus regarding delivery of the Units and under the
heading "Underwriting," (i) the table reflecting the Underwriter's 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 the
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Final Prospectus constitute the only information furnished in writing by the
Underwriter for inclusion in the Final Prospectus.
If any Proceeding is brought against the Partnership
and/or the Selling Unitholders or any such person in respect of which indemnity
may be sought against the Underwriter pursuant to the foregoing paragraph, the
Partnership and/or the Selling Unitholders or such person shall promptly notify
the Underwriter in writing of the institution of such Proceeding and the
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 the Underwriter shall not relieve the Underwriter from any liability
which the Underwriter may have to the Partnership and/or the Selling Unitholders
or any such person or otherwise. The Partnership and/or the Selling Unitholders
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 and/or the Selling Unitholders or such person unless the employment
of such counsel shall have been authorized in writing by the Underwriter in
connection with the defense of such Proceeding or the 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 the Underwriter (in which case the Underwriter shall not
have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties, but the Underwriter may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of the Underwriter), in any of which events the
reasonable fees and expenses shall be borne by the Underwriter and paid as
incurred (it being understood, however, that the Underwriter shall not be liable
for the 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 Underwriter shall not be liable for any settlement of any such
Proceeding effected without the written consent of the Underwriter but if
settled with the written consent of the Underwriter, the Underwriter agrees to
indemnify and hold harmless the Partnership and/or the Selling Unitholders 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.
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(iv) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsections (i), (ii) or (iii) of this
Section 8 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 in such proportions such that (i) the Underwriter shall be
responsible for the portion that the total underwriting discounts and
commissions received by the Underwriter bears to the aggregate public offering
price of the Units and (ii) the Partnership and the Selling Unitholders shall be
severally responsible for the balance based on the relative fault of the
Partnership and the Selling Unitholders, which shall be determined by reference
to, among other things, 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 the Selling Unitholders 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.
(v) The Partnership, the Selling Unitholders and the
Underwriter agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in subsection (iv) above. Notwithstanding the
provisions of this Section 8, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Units underwritten by the Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which the 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.
(vi) The indemnity and contribution agreements contained in
this Section 8 and the covenants, warranties and representations of the
Partnership and the Selling Unitholders contained in this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Underwriter, its directors and officers or any person (including each
partner, officer or director of such person) who controls the 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, 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 the Selling Unitholders, their directors,
members, managers or officers or any person who controls the Selling Unitholders
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 Selling Unitholders and the Underwriter agree
promptly to notify each other of the commencement of any Proceeding against it
and, in the case of the Partnership and the Selling
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Unitholders, 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 or the Selling Unitholders' officers, members, managers
or directors in connection with the sale of the Units, or in connection with the
Registration Statement or the Final Prospectus.
9. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by facsimile and, if to
the Underwriter, shall be sufficient in all respects if delivered or sent to UBS
Warburg LLC, 299 Park Avenue, New York, New York 10171-0026, Attention:
Syndicate Department, and, if to the Partnership, shall be sufficient in all
respects if delivered, sent or telefaxed to Janet K. Place at (402) 398-7780 and
confirmed to her at (402) 398-7886, and, if to a Selling Unitholder, shall be
sufficient in all respects if delivered or sent to the address set forth in
Schedule A hereto.
10. 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.
11. 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 between 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.
12. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriter and the Partnership and the
Selling Unitholders and to the extent provided in Section 8 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 Underwriter)
shall acquire or have any right under or by virtue of this Agreement.
13. 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.
14. Successors and Assigns. This Agreement shall be binding upon the
Underwriter, the Partnership and the Selling Unitholders and their successors
and assigns and
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any successor or assign of any substantial portion of the Partnership's and any
of the Underwriter's respective businesses and/or assets.
15. 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.
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 represent a binding agreement among the
Partnership, the Intermediate Partnership, the Selling Unitholders and the
Underwriter.
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Very truly yours,
NORTHERN BORDER PARTNERS, L.P.
By: /s/ Jerry L. Peters
-----------------------------------------
Name: Jerry L. Peters
---------------------------------------
Title: Chief Financial and Accounting Officer
--------------------------------------
NORTHERN BORDER INTERMEDIATE
Limited Partnership
By: /s/ Jerry L. Peters
-----------------------------------------
Name: Jerry L. Peters
---------------------------------------
Title: Chief Financial and Accounting Officer
--------------------------------------
SELLING UNITHOLDERS:
Cub Investment, LLC
By: Haddington Energy Partners LP, Manager
By: Haddington Ventures, L.L.C., General Partner
By: /s/ J. Chris Jones
-----------------------------------------
Name: J. Chris Jones
---------------------------------------
Title: Managing Director
--------------------------------------
HADDINGTON/CHASE ENERGY PARTNERS
(Bear Paw) LP
By: Haddington Ventures, L.L.C., General Partner
By: /s/ J. Chris Jones
-----------------------------------------
Name: J. Chris Jones
---------------------------------------
Title: Managing Director
--------------------------------------
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
UBS Warburg LLC
By: /s/ Michael Jamieson
------------------------------------
Name: Michael Jamieson
----------------------------------
Title: Director
---------------------------------
By: /s/ James Baker
------------------------------------
Name: James Baker
----------------------------------
Title: Associate Director
---------------------------------
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SCHEDULE A
NUMBER OF
UNITS TO BE
SELLING UNITHOLDER: SOLD
Cub Investment, LLC
c/o J.P. Morgan Partners (23A SBIC), LLC
1221 Avenue of the Americas
New York, NY 10020
Attention: Mr. Christopher Behrens 232,657
Haddington/Chase Energy Partners
(Bear Paw) LP
c/o Haddington Ventures, L.L.C.
2603 Augusta, Suite 1130
Houston, Texas 77057
Attention Mr. Chris Jones 54,439
Total 287,096
Schedule A-1