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EXECUTION COPY
COMMON UNITS
REPRESENTING LIMITED PARTNER INTERESTS
NORTHERN BORDER PARTNERS, L.P.
UNDERWRITING AGREEMENT
November 1, 2000
PAINEWEBBER INCORPORATED
SALOMON SMITH BARNEY INC.
LEHMAN BROTHERS INC.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
Northern Border Partners, L.P., a Delaware limited partnership (the
"Partnership") proposes to sell common units representing limited partner
interests in the Partnership (the "Common Units") in an aggregate amount of
1,875,000 Common Units (the "Firm Units") to PaineWebber Incorporated, Salomon
Smith Barney Inc. and Lehman Brothers Inc. (collectively, the "Underwriters").
Each Underwriter shall purchase that number of Firm Units set forth opposite its
name in Schedule I. The Partnership has also agreed to grant to the Underwriters
an option ("Option") to purchase up to an additional 281,250 Common Units (the
"Option Units") on the terms and for the purposes set forth in Section 1(b). The
Firm Units and the Option Units are hereinafter referred to as the "Units."
The public offering price per Common Unit for the Units and the
purchase price per Common Unit for the Units to be paid by the Underwriters
shall be agreed upon by the Partnership and the Underwriters, and such agreement
shall be set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among the Partnership and the Underwriters and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering of
the Units will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and, unless the context otherwise indicates, all references
contained herein to "this Agreement" and to the phrase "herein" shall be deemed
to include the Price Determination Agreement.
Each of the Partnership and Northern Border Intermediate Limited
Partnership, a Delaware limited partnership (the "Intermediate Partnership")
confirms as follows its agreements with the Underwriters.
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1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and
agreements of the Partnership and the Intermediate Partnership herein
contained and subject to all the terms and conditions of this
Agreement, the Partnership agrees to sell to the several Underwriters,
and each of the Underwriters, severally and not jointly, agrees to
purchase from the Partnership at the purchase price per Common Unit for
the Units to be agreed upon by the Underwriters and the Partnership in
accordance with Section 1(b) or 1(c) hereof and set forth in the Price
Determination Agreement, the number of Firm Units set forth opposite
the name of such Underwriter in Schedule I, plus such additional number
of Firm Units which such Underwriter may become obligated to purchase
pursuant to Section 9 hereof. Schedule I may be attached to the Price
Determination Agreement.
(b) Subject to all the terms and conditions of this Agreement,
the Partnership grants the Option to the several Underwriters to
purchase, severally and not jointly, up to 281,250 Option Units from
the Partnership at the same price per Common Unit as the Underwriters
shall pay for the Firm Units. The Option may be exercised only to cover
over-allotments in the sale of the Firm Units by the Underwriters and
may be exercised in whole or in part at any time (but not more than
once) on or before the 30th day after the date of the Price
Determination Agreement, upon written or telegraphic notice (the
"Option Units Notice") by the Underwriters to the Partnership no later
than 12:00 noon, New York City time, at least two and no more than five
business days before the date specified for closing in the Option Units
Notice (the "Option Closing Date") setting forth the aggregate number
of Option Units to be purchased and the time and date for such
purchase. On the Option Closing Date, the Partnership will issue and
sell to the Underwriters the number of Option Units set forth in the
Option Units Notice, and each Underwriter will purchase the percentage
of the Option Units as is equal to the percentage of Firm Units that
such Underwriter is purchasing, as adjusted by the Underwriters in such
manner as they deem advisable to avoid fractional Common Units.
(c) The public offering price per Common Unit for the Firm
Units and the purchase price per Common Unit for the Firm Units to be
paid by the Underwriters shall be agreed upon and set forth in the
Price Determination Agreement, which shall be dated the date hereof. In
the event such price has not been agreed upon and the Price
Determination Agreement has not been executed by the close of business
on the fourteenth business day following the date on which this
agreement is executed, this Agreement shall terminate forthwith,
without liability of any party to any other party except that Section 7
shall remain in effect.
2. Delivery and Payment.
(a) Delivery of the Units shall be made to the Underwriters at
the office of PaineWebber Incorporated, 1285 Avenue of the Americas,
New York, New York 10019, against payment of the purchase price by wire
transfer of Federal Funds or similar same day funds to an account
designated in writing by the Partnership to the Underwriters at least
one business day prior to the Closing Date (as hereinafter defined).
Such payment shall be made
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at 10:00 a.m., New York City time, on the third business day (or fourth
business day, if the Price Determination Agreement is executed after
4:30 p.m.) after the date on which the first bona fide offering of the
Units to the public is made by the Underwriters or at such time on such
other date, not later than ten business days after such date, as may be
agreed upon by the Partnership and the Underwriters (such date is
hereinafter referred to as the "Closing Date").
(b) To the extent the Option is exercised, delivery of the
Option Units against payment by the Underwriters (in the manner
specified above) will take place at the offices specified above for the
Closing Date at the time and date (which may be the Closing Date)
specified in the Option Units Notice.
(c) Certificates evidencing the Units shall be in definitive
form and shall be registered in such names and in such denominations as
the Underwriters shall request at least two business days prior to the
Closing Date or the Option Closing Date, as the case may be, by written
notice to the Partnership. For the purpose of expediting the checking
and packaging of certificates for the Units, the Partnership agrees to
make such certificates available for inspection at least 24 hours prior
to the Closing Date or the Option Closing Date, as the case may be.
(d) The cost of original issue tax stamps, if any, in
connection with the issuance and delivery of the Firm Units and Option
Units by the Partnership to the respective Underwriters shall be borne
by the Partnership. The Partnership will pay and save the Underwriters
and any subsequent holder of the Units harmless from any and all
liabilities with respect to or resulting from any failure or delay in
paying Federal and state stamp and other transfer taxes, if any, which
may be payable or determined to be payable in connection with the
original issuance or sale to such Underwriter of the Firm Units and
Option Units.
3. Representations and Warranties of the Partnership and the
Intermediate Partnership. Each of the Partnership and the Intermediate
Partnership jointly and severally represents, warrants and covenants to the
Underwriters that:
(a) The Partnership meets the requirements for use of Form S-3
and the registration statement (Registration No. 333-72323) on Form S-3
relating to the Units (and such amendments to such registration
statement as may have been required to the date of this Agreement) has
been prepared by the Partnership in accordance with the requirements of
the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (collectively referred to as the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission")
thereunder, and has been filed with the Commission. Such registration
statement has been declared effective by the Commission. Copies of such
registration statement and amendments have been delivered to the
Underwriters. The term "Registration Statement" means, collectively,
the registration statement on Form S-3 referred to above, including all
financial statements and exhibits, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), Rule 430A and Rule 434 of the Rules and
Regulations, or otherwise, and any registration statement filed under
Rule 462 of the Rules and Regulations as such registration
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statement may be amended from time to time. The term "Prospectus" means
the prospectus constituting a part of the Registration Statement and
any amendments or supplements to such prospectus through the date
hereof, including without limitation the prospectus supplement filed
with the Commission in connection with the proposed sale of Units
contemplated by this Agreement (the "Prospectus Supplement"); provided,
however, that if any revised prospectus or prospectus supplement,
including the Prospectus Supplement, shall be provided to the
Underwriters by the Partnership for use in connection with the offering
of the Units that differs from the Prospectus (whether or not such
revised prospectus or prospectus supplement is required to be filed by
the Partnership with the Commission pursuant to Rule 424(b) of the
Rules and Regulations), the term "Prospectus" shall refer to such
revised prospectus or prospectus supplement, as the case may be, from
and after the time it is first provided to the Underwriters for such
use. Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act, on or before the date hereof or are
so filed hereafter. Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include any such
document filed or to be filed under the Exchange Act after the date of
the Prospectus, and deemed to be incorporated therein by reference.
(b) On the date the Registration Statement was declared
effective by the Commission (the "Effective Date"), at all times
subsequent to and including the Closing Date and, if later, the Option
Closing Date and when any post-effective amendment to the Registration
Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission, the Registration Statement and
the Prospectus (as amended or as supplemented if the Partnership shall
have filed with the Commission any amendment or supplement thereto),
including the financial statements included or incorporated by
reference in the Prospectus or the Registration Statement, did or will
comply with all applicable provisions of the Act, the Exchange Act, the
rules and regulations thereunder (the "Exchange Act Rules and
Regulations") and the Rules and Regulations and will contain all
statements required to be stated therein in accordance with the Act,
the Exchange Act, the Exchange Act Rules and Regulations and the Rules
and Regulations. On the Effective Date and when any post-effective
amendment to the Registration Statement becomes effective, no part of
the Registration Statement or any such amendment did or will contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading. At the Effective Date, the date the
Prospectus or any amendment or supplement to the Prospectus is filed
with the Commission and at the Closing Date and, if later, the Option
Closing Date, the Prospectus did not or will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The foregoing representations and
warranties in this Section 3(b) do not apply to any statements or
omissions made in reliance on and in conformity with information
relating to the Underwriters furnished in writing to the Partnership by
the Underwriters specifically for inclusion in the Registration
Statement or Prospectus or any amendment or supplement thereto. For all
purposes of this Agreement the only information
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relating to the Underwriters furnished in writing to the Partnership by
the Underwriters specifically for inclusion in the Registration
Statement or the Prospectus are (i) the stabilization legend inside the
front cover of the Prospectus Supplement, (ii) the amounts of the
selling commission and reallowance set forth in the section captioned
"Underwriting" of the Prospectus Supplement; (iii) the number of Common
Units to be purchased by each Underwriter set forth in the section
captioned "Underwriting" in the Prospectus Supplement and (iv) the last
paragraph of the section captioned "Underwriting" in the Prospectus
Supplement. The Partnership has not distributed any offering material
in connection with the offering or sale of the Units other than the
Registration Statement and the Prospectus.
(c) The documents which are incorporated by reference in the
Registration Statement and the Prospectus or from which information is
so incorporated by reference (collectively, the "Exchange Act
Documents"), when they become effective or were filed with the
Commission, as the case may be, complied in all material respects with
the requirements of the Act or the Exchange Act, as applicable, the
Exchange Act Rules and Regulations and the Rules and Regulations; and
any documents so filed and incorporated by reference subsequent to the
Closing Date shall, when they are filed with the Commission, conform in
all material respects with the requirements of the Act and the Exchange
Act, as applicable, the Exchange Act Rules and Regulations and the
Rules and Regulations.
(d) The only significant subsidiaries (as defined in
Regulation S-X under the Act) of the Partnership are the Intermediate
Partnership, Northern Border Pipeline Company, a Texas general
partnership ("Northern Border Pipeline") and Crestone Energy Ventures,
L.L.C., a Delaware limited liability company ("Crestone")
(collectively, the "Subsidiaries"). 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
Closing Date 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 Prospectus. Each of the Subsidiaries is,
and at the Closing Date 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 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. and (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, and (iv) a 35% membership
interest in Lost Creek Gathering, L.L.C., a Delaware limited liability
company, in each case 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 Prospectus). The
Intermediate Partnership owns a 70% general partner interest in
Northern Border Pipeline
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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 Prospectus).
(e) 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
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.
(f) 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 Effective Date, the
"Partnership Agreement"), and were validly issued to the General
Partners and are fully paid (to the extent required under the
Partnership Agreement).
(g) 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 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 Underwriters, and no changes therein
will be made subsequent to the date hereof and prior to the Closing
Date.
(h) The limited partners of the Partnership hold limited
partner interests in the Partnership aggregating 99.0%, such limited
partner interests being represented by 29,347,313 Common Units (the
"Limited Partner Units"); such limited partner interests are the only
limited partner interests of the Partnership that are issued and
outstanding; the Limited Partner Units and the limited partner
interests represented thereby are authorized by the Partnership
Agreement, were validly issued and fully paid (to the extent required
under
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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).
(i) 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 Prospectus).
(j) Except as described in the Registration Statement or the
Prospectus 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., (ii) rights granted pursuant to that certain
Exchange Agreement dated December 29, 1997 between the Partnership and
Central Pacific Resources Partnership, and (iii) restrictions on
transfer of securities issued by the Partnership in reliance on Section
4(2) of the Act, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or
transfer of, 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 Prospectus. Except as described above, there are no
outstanding options or warrants to purchase any Common Units.
(k) None of the Partnership, the Intermediate Partnership, or
Northern Border Pipeline, has sustained since the date of the latest
audited financial statements incorporated by reference in the
Registration Statement 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 Prospectus; and, since the respective dates as of
which information is given in the Prospectus, there has not been any
material adverse change in the capitalization or long-term debt of the
Partnership, the Intermediate Partnership, or Northern Border Pipeline
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
the Partnership, the Intermediate Partnership or Northern Border
Pipeline, otherwise than as set forth or contemplated in the
Prospectus.
(l) Northern Border Pipeline has good and indefeasible title
to all real and personal property necessary to own and operate the
Pipeline System (as defined in the Prospectus) in all material respects
as described in the Prospectus, free and clear of all liens,
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claims, encumbrances and defects except (1) as described in the
Prospectus and (2) such as do not materially interfere with the
ownership, operation or benefits of ownership of the Pipeline System or
materially increase the cost of operation or ownership of the Pipeline
System, provided that, (a) with respect to the gas transmission
pipelines and right-of-way interests related thereto (the "Pipeline
Properties") the foregoing shall only constitute a representation that,
except as described in the Prospectus, (i) Northern Border Pipeline has
sufficient title to enable it to use such Pipeline Properties in its
business as they have been used in the past and as are proposed to be
used in the future as described in the 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 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 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,
such real property, buildings and equipment are held by Northern Border
Pipeline 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.
(m) The sale of the Units by the Partnership and the
compliance by the Partnership and the Intermediate Partnership with all
of the provisions of this Agreement and the consummation of the
transactions contemplated herein and in the Prospectus to be
consummated at the Closing Date 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, the
Intermediate Partnership, or Northern Border Pipeline 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 or other
governing documents of any of the Partnership, the Intermediate
Partnership or Northern Border Pipeline 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 sale of the Units or the consummation by the Partnership or the
Intermediate Partnership of the transactions contemplated herein and in
the Prospectus to be consummated at the Closing Date, except for (i)
the registration under the Act of the offer and sale of the Units and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and state
securities or Blue Sky laws in connection with the purchase and
distribution of the Units by the Underwriters, and (ii) such consents,
approvals, authorizations, orders, registrations or qualifications (A)
as have been obtained or will be obtained prior to the Closing Date 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 any of the Partnership, the Intermediate Partnership, any of the
General Partners or Northern Border Pipeline. The offering and sale of
Units as contemplated by this Agreement does not give rise to any
rights, other than those which have
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been waived or satisfied, for or relating to the registration of any
Units or other securities of the Partnership.
(n) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which any of the
Partnership, the Intermediate Partnership or Northern Border Pipeline
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 any of the Partnership, the Intermediate Partnership, or Northern
Border Pipeline; and, to the best of the Partnership's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(o) Arthur Andersen L.L.P., 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 and
the rules and regulations of the Commission thereunder;
(p) (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
Prospectus and the Exchange Act Documents and (B) bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and general equitable
principles.
(q) Each of the Partnership, the Intermediate Partnership and
Northern Border Pipeline 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.
(r) None of the Partnership, the Intermediate Partnership or
Northern Border Pipeline is in, nor will consummation of the
transactions contemplated herein or in the Prospectus to be consummated
at the Closing Date result in: (i) violation of its agreement of
limited or general partnership; 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 agreement, indenture or
instrument to which it or its property may be subject, or violation of
any law, ordinance, governmental rule, regulation or court decree to
which it or its property may be subject, which default or violation,
individually or in the aggregate, could have a material adverse effect
on the holders of Common Units or the consolidated financial position
or results of operations or prospects of any of the Partnership, the
Intermediate Partnership or Northern Border Pipeline; and, except as
described in the Prospectus, none has failed to
<PAGE> 10
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.
(s) Neither the Partnership nor the Intermediate Partnership
is, or at the Time of Delivery 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.
(t) Except as described in the Prospectus, the Partnership,
the Intermediate Partnership and Northern Border Pipeline 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
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, the Intermediate
Partnership or Northern Border Pipeline to conduct their businesses in
all material respects as currently conducted and as contemplated by the
Prospectus to be conducted; and, except as described in the Prospectus,
none of the Partnership, the Intermediate Partnership and Northern
Border Pipeline 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, the
Intermediate Partnership or Northern Border Pipeline to conduct their
businesses in all material respects as currently conducted and as
contemplated by the Prospectus to be conducted.
(u) Neither the Partnership nor the Intermediate Partnership
has taken, and neither of such persons shall take, 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.
(v) The financial statements of the Partnership (including the
related notes and supporting schedules) filed as part of the
Registration Statement or included in the 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.
(w) The Partnership maintains a system of internal accounting
control 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
<PAGE> 11
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.
(x) The Partnership, the Intermediate Partnership and Northern
Border Pipeline (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, the Intermediate Partnership and
Northern Border Pipeline, 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.
(y) In the ordinary course of its business, the Partnership,
the Intermediate Partnership and Northern Border Pipeline conduct a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Partnership, the Intermediate
Partnership and Northern Border Pipeline, in the course of which it
identifies and evaluates 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 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, the Intermediate
Partnership and the Subsidiaries, taken as a whole.
(z) The Partnership, the Intermediate Partnership and Northern
Border Pipeline are in compliance with all federal, state and local
employment and labor laws, including, but not limited to, laws relating
to non-discrimination in hiring, promotion and pay of employees; no
labor dispute with the employees of the Partnership, the Intermediate
Partnership or Northern Border Pipeline exists or, to the knowledge of
the Partnership or the Intermediate Partnership, is imminent or
threatened; and neither the Partnership nor the
<PAGE> 12
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, the Intermediate Partnership and Northern Border Pipeline,
taken as a whole.
(aa) The outstanding Common Units are listed for trading on
the New York Stock Exchange, and the Common Units to be sold pursuant
to this Agreement have been approved for listing on the New York Stock
Exchange upon official notice of issuance.
4. Agreements of the Partnership. The Partnership agrees with
the several Underwriters as follows:
(a) The Partnership will not, either prior to the Closing Date
or thereafter, during such period as the Prospectus is required by law
to be delivered in connection with sales of the Units by an Underwriter
or any dealer, file any amendment or supplement to the Registration
Statement or the Prospectus, unless a copy thereof shall first have
been submitted to the Underwriters within a reasonable period of time
prior to the filing thereof and the Underwriters shall not have
objected thereto in good faith.
(b) The Partnership will notify the Underwriters promptly, and
will confirm such advice in writing, (1) when any post-effective
amendment to the Registration Statement becomes effective, (2) of any
request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information,
(3) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose or the threat thereof, (4) of the
happening of any event during the period mentioned in the second
sentence of Section 4(e) that in the judgment of the Partnership makes
any statement made in the Registration Statement or the Prospectus
untrue or that requires the making of any changes in the Registration
Statement or the Prospectus in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading and (5) of receipt by the Partnership or any representative
or attorney of the Partnership of any other communication from the
Commission relating to the Partnership, the Registration Statement or
the Prospectus. If at any time the Commission shall issue any order
suspending the effectiveness of the Registration Statement, the
Partnership will make every reasonable effort to obtain the withdrawal
of such order at the earliest possible moment. The Partnership will use
its best efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to Rule 430A and to
notify the Underwriters promptly of all such filings.
(c) The Partnership will furnish to the Underwriters, without
charge, upon request, one signed copy and the number of photocopies as
may reasonably be requested of the Registration Statement and of any
post-effective amendment thereto, including financial statements and
schedules, and all exhibits thereto and all documents filed under the
Exchange Act and deemed to be incorporated by reference into the
Prospectus.
<PAGE> 13
(d) The Partnership will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date and thereafter from time to time,
the Partnership will deliver to the Underwriters, without charge, as
many copies of the Prospectus or any amendment or supplement thereto as
the Underwriters may reasonably request. The Partnership consents to
the use of the Prospectus or any amendment or supplement thereto by the
Underwriters and by all dealers to whom the Units may be sold, both in
connection with the offering or sale of the Units and for any period of
time thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time any
event shall occur which in the judgment of the Partnership or counsel
to the Underwriters should be set forth in the Prospectus in order to
make any statement therein, in the light of the circumstances under
which it was made, not misleading, or if it is necessary to supplement
or amend the Prospectus to comply with law, the Partnership will
forthwith prepare and duly file with the Commission an appropriate
supplement or amendment thereto, and will deliver to each Underwriter,
without charge, such number of copies thereof as the Underwriters may
reasonably request. The Partnership shall not file any document under
the Exchange Act before the completion of the distribution of the
Common Units by the Underwriters (which includes the distribution of
any Common Units pursuant to the Option, if exercised) if such document
would be deemed to be incorporated by reference into the Prospectus
unless a copy thereof shall first have been submitted to the
Underwriters within a reasonable period of time prior to the filing
thereof and the Underwriters shall not have objected thereto in good
faith.
(f) Prior to any public offering of the Units by the
Underwriters, the Partnership will cooperate with the Underwriters and
counsel to the Underwriters in connection with the registration or
qualification of the Units for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Underwriters may request;
provided, that in no event shall the Partnership be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general
service of process in any jurisdiction where it is not now so subject.
(g) During the period of three years commencing on the Closing
Date, the Partnership will, upon request, furnish to the Underwriters a
copy of such financial statements and other periodic and special
reports as the Partnership may from time to time distribute generally
to the holders of any class of its equity securities, and will furnish
to the Underwriters who so request a copy of each annual or other
report it shall be required to file with the Commission.
(h) The Partnership will make generally available to holders
of its securities as soon as may be practicable but in no event later
than the last day of the fifteenth full calendar month following the
calendar quarter in which the Effective Date falls, an earnings
statement (which need not be audited but shall be in reasonable detail)
for a period of 12 months ended commencing after the Effective Date,
and satisfying the provisions of Section 11(a) of the Act (including
Rule 158 of the Rules and Regulations).
<PAGE> 14
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the
Partnership will pay, or reimburse if paid by the Underwriters, all
costs and expenses incident to the performance of the obligations of
the Partnership and the Intermediate Partnership under this Agreement,
including but not limited to costs and expenses of or relating to (1)
the preparation, printing and filing of the Registration Statement and
exhibits thereto and the Prospectus and any amendment or supplement
thereto, (2) the preparation and delivery of certificates representing
the Units, (3) the word processing, printing and reproduction of this
Agreement, the Agreement Among Underwriters, and any Dealer Agreements
and the Underwriters' Questionnaire, (4) furnishing (including costs of
shipping, mailing and courier) such copies of the Registration
Statement, the Prospectus and all amendments and supplements thereto,
as may be requested for use in connection with the offering and sale of
the Units by the Underwriters or by dealers to whom Units may be sold,
(5) the listing of the Units on the New York Stock Exchange, (6) any
filings required to be made by the Underwriters with the NASD, if any,
and the fees, disbursements and other charges of counsel for the
Underwriters in connection therewith, (7) the registration or
qualification of the Units for offer and sale under the securities or
Blue Sky laws of such jurisdictions designated pursuant to Section
4(e), if any are so required, including the fees, disbursements and
other charges of counsel to the Underwriters in connection therewith,
and the preparation and printing of preliminary, supplemental and final
Blue Sky memoranda, (8) counsel to the Partnership the Intermediate
Partnership or any of the General Partners, (9) the transfer agent for
the Units and (10) the Accountants. The total aggregate amount for 3, 6
(only with respect to fees and disbursements of counsel) and 7 above
shall not exceed $5,000.
(j) If this Agreement shall be terminated by the Partnership
pursuant to any of the provisions hereof (other than pursuant to
Section 8) or if for any reason the Partnership shall be unable to
perform its obligations hereunder, the Partnership will reimburse the
Underwriters for all out-of-pocket expenses (including the fees,
disbursements and other charges of counsel to the Underwriters)
reasonably incurred by them in connection.
(k) The Partnership will not at any time, directly or
indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will constitute,
stabilization of the price of the Common Units to facilitate the sale
or resale of any of the Units.
(l) The Partnership will apply the net proceeds from the
offering and sale of the Units to be sold by the Partnership in the
manner set forth in the Prospectus Supplement under "Use of Proceeds."
(m) During the period of 90 days commencing at the Closing
Date, the Partnership will not, without the prior written consent of
PaineWebber Incorporated, directly or indirectly, sell, offer to sell,
grant any option for the sale of, or otherwise dispose of, any Common
Units or securities convertible into Common Units, other than to the
Underwriters pursuant to this Agreement and other than pursuant to
employee stock option plans or in connection with other employee
incentive compensation arrangements.
<PAGE> 15
(n) The Partnership will use its best efforts to cause each of
its executive officers and each member of the Partnership Policy
Committee who beneficially own, directly or indirectly, Common Units
and each General Partner to enter into agreements with the Underwriters
in the form set forth in Exhibit B to the effect that they will not,
for a period of 90 days after the commencement of public offering of
the Units, without prior written consent of PaineWebber Incorporated,
sell, contract to sell or otherwise dispose of any Common Units or
rights to acquire such Common Units.
5. Conditions of the Obligations of the Underwriters.
In addition to the execution and delivery of the Price Determination Agreement,
the obligations of the Underwriters hereunder are subject to the following
conditions:
(a) Confirmation that the Registration Statement is effective
shall be received by the Underwriters not later than 5:00 p.m., New
York City time, on the date of this Agreement or at such later date and
time as shall be consented to in writing by the Underwriters and all
filings required by Rule 424 of the Rules and Regulations and Rule 430A
shall have been made.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall be pending or threatened by the Commission, (ii) no
order suspending the effectiveness of the Registration Statement or the
qualification or registration of the Units under the securities or Blue
Sky laws of any jurisdiction shall be in effect and no proceeding for
such purpose shall be pending before or threatened or contemplated by
the Commission or the authorities of any such jurisdiction, (iii) any
request for additional information on the part of the staff of the
Commission or any such authorities shall have been complied with to the
satisfaction of the staff of the Commission or such authorities and
(iv) after the date hereof no amendment or supplement to the
Registration Statement or the Prospectus shall have been filed unless a
copy thereof was first submitted to the Underwriters and the
Underwriters did not object thereto in good faith, and the Underwriters
shall have received certificates, dated the Closing Date and the Option
Closing Date signed by the Chief Executive Officer of the Partnership
and the Chief Financial Officer of the Partnership (who may, as to
proceedings threatened, rely upon the best of their information and
belief), to the effect of clauses (i), (ii), (iii) and (iv).
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there shall
not have been, and no development shall have occurred which could
reasonably be expected to result in, a material adverse change in the
general affairs, business, business prospects, properties, management,
condition (financial or otherwise) or results of operations of the
Partnership, the Intermediate Partnership or Northern Border Pipeline
whether or not arising from transactions in the ordinary course of
business, in each case other than as set forth in or contemplated by
the Registration Statement and the Prospectus and (ii) none of the
Partnership, the Intermediate Partnership or Northern Border Pipeline
shall have sustained any material loss or interference with its
business or properties from fire, explosion, flood or other casualty,
whether or not covered by insurance, or from any labor dispute or any
court or legislative or other governmental action, order or decree,
which is not set forth in the Registration Statement and the
<PAGE> 16
Prospectus, if in the judgment of the Underwriters any such development
makes it impracticable or inadvisable to consummate the sale and
delivery of the Units by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall
have been no litigation or other proceeding instituted against any of
the Partnership, the Intermediate Partnership or Northern Border
Pipeline or any of their respective general partners, officers or
directors in their capacities as such, before or by any Federal, state
or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or
proceeding an unfavorable ruling, decision or finding would materially
and adversely affect the business, properties, business prospects,
condition (financial or otherwise) or results of operations of any of
the Partnership, the Intermediate Partnership or Northern Border
Pipeline.
(e) Each of the representations and warranties of the
Partnership, and the Intermediate Partnership contained herein shall be
true and correct in all material respects at the Closing Date, and with
respect to the Option Units, at the Option Closing Date as if made at
the Closing Date and, with respect to the Option Units, at the Option
Closing Date and all covenants and agreements herein contained to be
performed on the part of the Partnership, and the Intermediate
Partnership and all conditions herein contained to be fulfilled or
complied with by the Partnership and the Intermediate Partnership at or
prior to the Closing Date, and with respect to the Option Units, at the
Option Closing Date, shall have been duly performed, fulfilled or
complied with.
(f) The Underwriters shall have received an opinion, dated the
Closing Date, and with respect to the Option Units, at the Option
Closing Date, and satisfactory in form and substance to counsel for the
Underwriters, from Vinson & Elkins, L.L.P., counsel to the Partnership
and the Intermediate Partnership to the effect set forth in Exhibit C.
(g) The Underwriters shall have received an opinion, dated the
Closing Date, and with respect to the Option Units, at the Option
Closing Date, and satisfactory in form and substance to counsel for the
Underwriters, from Janet K. Place, Esq., General Counsel of Northern
Plains, to the effect set forth in Exhibit D.
(h) The Underwriters shall have received an opinion, dated the
Closing Date, and with respect to the Option Units, at the Option
Closing Date, from Andrews & Kurth L.L.P., counsel to the Underwriters
which opinion shall be satisfactory in all respects to the
Underwriters.
(i) On the date of this Agreement, Arthur Andersen LLP shall
have furnished to the Underwriters a letter, dated the date of its
delivery, addressed to the Underwriters and in form and substance
satisfactory to the Underwriters, confirming that they are independent
accountants with respect to the Partnership and the Intermediate
Partnership as required by the Act and the Rules and Regulations, and
with respect to certain financial information contained in the
Registration Statement or incorporated by reference therein. At the
Closing
<PAGE> 17
Date and, with respect to the Option Units, at the Option Closing Date,
Arthur Andersen LLP shall have furnished to the Underwriters a letter,
dated the date of its delivery, which shall confirm, on the basis of a
review in accordance with the procedures set forth in the letter from
Arthur Andersen LLP, that nothing has come to their attention during
the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than five days
prior to the Closing Date and the Option Closing Date which would
require any change in their letter dated the date hereof, if it were
required to be dated and delivered at the Closing Date and the Option
Closing Date.
(j) At the Closing Date and, with respect to the Option Units,
at the Option Closing Date, there shall be furnished to the
Underwriters an accurate certificate, dated the date of its delivery,
signed by each of the Chief Executive Officer and the Chief Financial
Officer of the Partnership and the Intermediate Partnership, in form
and substance satisfactory to the Underwriters, to the effect that:
(i) Each signer of such certificate has carefully examined
the Registration Statement, the Prospectus (including any
documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus) and the
Underwriting Agreement;
(ii) Each of the representations and warranties of the
Partnership and the Intermediate Partnership contained in this
Agreement were, when originally made, and are, at the time
such certificate is delivered, true and correct in all
material respects;
(iii) Each of the covenants required herein to be
performed by the Partnership or the Intermediate Partnership
on or prior to the delivery of such certificate has been duly,
timely and fully performed, each condition herein required to
be complied with by the Partnership and the Intermediate
Partnership on or prior to the date of such certificate has
been duly, timely and fully complied with, and each other
condition concurrent or precedent to the obligations of the
Underwriters hereunder has been fulfilled; and
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (A)
there has not been, and no development has occurred which
could reasonably be expected to result in, a material adverse
change in the general affairs, business, business prospects,
properties, management, condition (financial or otherwise) or
results of operations of the Partnership, the Intermediate
Partnership or Northern Border Pipeline, whether or not
arising from transactions in the ordinary course of business,
in each case other than as set forth in or contemplated by the
Registration Statement and the Prospectus and (B) neither the
Partnership, the Intermediate Partnership nor Northern Border
Pipeline has sustained any material loss or interference with
its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from
any labor dispute or any court or legislative or other
governmental action, order
<PAGE> 18
or decree, which is not set forth in the Registration
Statement and the Prospectus; and such other matters as the
Underwriters may reasonably request.
(k) On or prior to the Closing Date, the Underwriters shall
have received waivers from each of the General Partners with respect to
the preemptive rights set forth in Section 4.3 of the Partnership
Agreement with respect to the Common Units to be sold pursuant to this
Agreement.
(l) The Units shall be qualified for sale in such states as
the Underwriters may reasonably request, each such qualification shall
be in effect and not subject to any stop order or other proceeding on
the Closing Date and the Option Closing Date.
(m) Prior to the Closing Date, the Units shall have been duly
authorized for listing by the New York Stock Exchange subject to
official notice of issuance.
(n) The agreements contemplated by Section 4(n) shall have
been delivered to the Underwriters in a form reasonably satisfactory to
them.
(o) The Partnership shall have furnished to the Underwriters
such certificates from the Chief Executive Officer and Chief Financial
Officer of the Partnership and the Intermediate Partnership, in
addition to those specifically mentioned herein, as the Underwriters
may have reasonably requested.
6. Indemnification.
(a) Each of the Partnership and the Intermediate Partnership
will, jointly and severally, indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls each Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, liabilities,
expenses and damages (including, but not limited to, any and all
investigative, legal and other expenses reasonably incurred in
connection with, and any and all amounts paid in settlement of, any
action, suit or proceeding between any of the indemnified parties and
any indemnifying parties or between any indemnified party and any third
party, or otherwise, or any claim asserted), as and when incurred, to
which any Underwriter, or any such person, may become subject under the
Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on (i) any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus
or in any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus, (ii) the omission or
alleged omission to state in such document a material fact required to
be stated in it or necessary to make the statements in it not
misleading or (iii) any act or failure to act or any alleged act or
failure to act by the Underwriter in connection with, or relating in
any manner to, the Units or the offering contemplated hereby, and which
is included as part of or referred to in any loss, claim, liability,
expense or damage arising out of or based upon matters covered by
<PAGE> 19
clause (i) or (ii) above (provided that neither the Partnership nor the
Intermediate Partnership shall be liable under this clause (iii) to the
extent it is finally judicially determined by a court of competent
jurisdiction that such loss, claim, liability, expense or damage
resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Underwriter through its gross negligence or
willful misconduct); provided that the Partnership or the Intermediate
Partnership will not be liable to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Units in the
public offering to any person by an Underwriter and is based on an
untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Partnership by any Underwriter
expressly for inclusion in the Registration Statement or the
Prospectus.
(b) Each Underwriter will indemnify and hold harmless the
Partnership and the Intermediate Partnership, each person, if any, who
controls the Partnership within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, each member of the Partnership Policy
Committee, each director of a General Partner and each officer of the
Partnership who signed the Registration Statement to the same extent as
the foregoing indemnity from the Partnership and the Intermediate
Partnership to the Underwriters, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any
untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to the
Underwriter furnished in writing to the Partnership by the Underwriters
expressly for use in the Registration Statement or the Prospectus. This
indemnity will be in addition to any liability that each Underwriter
might otherwise have; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discounts and commissions received by such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section 6, notify each such indemnifying party of the commencement of
such action, enclosing a copy of all papers served, but the omission so
to notify such indemnifying party will not relieve it from any
liability that it may have to any indemnified party under the foregoing
provisions of this Section 6 unless, and only to the extent that, such
omission results in the forfeiture of substantive rights or defenses by
the indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in
and, to the extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the
action, with counsel satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except
as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the
defense. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges of
such counsel
<PAGE> 20
will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based on advice of
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have
the right to direct the defense of such action on behalf of the
indemnified party) or (4) the indemnifying party has not in fact
employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying
party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm
admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they
are incurred. An indemnifying party will not be liable for any
settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld). No indemnifying
party shall, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action or proceeding relating to the
matters contemplated by this Section 6 (whether or not any indemnified
party is a party thereto), unless such settlement, compromise or
consent includes an unconditional release of each indemnified party
from all liability arising or that may arise out of such claim, action
or proceeding. No party will be liable for contribution with respect to
any action or claim settled without its written consent (which consent
will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the
foregoing paragraphs of this Section 6 is applicable in accordance with
its terms but for any reason is held to be unavailable from the
Partnership, the Intermediate Partnership or the Underwriters, the
Partnership, the Intermediate Partnership, and the Underwriters will
contribute to the total losses, claims, liabilities, expenses and
damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted,
but after deducting any contribution received by the Partnership or the
Intermediate Partnership from persons other than the Underwriters, such
as persons who control the Partnership or the Intermediate Partnership
within the meaning of the Act, officers of the Partnership who signed
the Registration Statement and each member of the Partnership Policy
Committee, who also may be liable for contribution) to which the
Partnership, the Intermediate Partnership and the Underwriters may be
subject in such proportion as shall be appropriate to reflect the
relative benefits received by the Partnership and the Intermediate
Partnership on the one hand and the Underwriters on the other. The
relative benefits received by the Partnership and the Intermediate
Partnership on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the
<PAGE> 21
Partnership bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on
the cover page of the Prospectus Supplement. If, but only if, the
allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such
proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of
the Partnership and the Intermediate Partnership, on the one hand, and
the Underwriters, on the other, with respect to the statements or
omissions which resulted in such loss, claim, liability, expense or
damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Partnership and the Intermediate Partnership or the Underwriters, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Partnership, the Intermediate Partnership and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were to be determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does
not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the
loss, claim, liability, expense or damage, or action in respect
thereof, referred to above in this Section 6(d) shall be deemed to
include, for purpose of this Section 6(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 6(d), no Underwriter shall be required
to contribute any amount in excess of the underwriting discounts and
commissions received by it and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 6(d) are several in proportion
to their respective underwriting obligations and not joint. For
purposes of this Section 6(d), any person who controls a party to this
Agreement within the meaning of the Act will have the same rights to
contribution as that party, and each officer of the Partnership or any
General Partner who signed the Registration Statement will have the
same rights to contribution as the Partnership and the Intermediate
Partnership, subject in each case to the provisions hereof. Any party
entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a
claim for contribution may be made under this Section 6(d), will notify
any such party or parties from whom contribution may be sought, but the
omission so to notify will not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may
have under this Section 6(d). No party shall be liable for contribution
with respect to any action or claim settled without its written consent
(which consent shall not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the
Partnership and the Intermediate Partnership contained in this
Agreement shall remain operative and in full force and effect
regardless of
<PAGE> 22
(i) any investigation made by or on behalf of the Underwriters, (ii)
acceptance of the Units and payment therefore or (iii) any termination
of this Agreement.
7. Termination. The obligations of the several Underwriters under this
Agreement may be terminated at any time on or prior to the Closing Date (or,
with respect to the Option Units, on or prior to the Option Closing Date),
without liability on the part of any Underwriter to the Partnership or the
Intermediate Partnership, if, prior to delivery and payment for the Firm Units
(or the Option Units, as the case may be), in the sole judgment of the
Underwriters, (i) there has been, since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the Partnership's properties, business prospects, condition (financial or
otherwise) or results of operations, (ii) trading in any of the equity
securities of the Partnership shall have been suspended by the Commission, the
NASD or by the New York Stock Exchange, (iii) trading in securities generally on
the New York Stock Exchange, the Nasdaq Stock Market or the American Stock
Exchange shall have been suspended or limited or minimum or maximum prices shall
have been generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by such exchange or by
order of the Commission or the NASD or any court or other governmental
authority, (iv) a general banking moratorium shall have been declared by either
Federal or New York State authorities or (v) any material adverse change in the
financial or securities markets or in political, financial or economic
conditions or any outbreak or escalation of hostilities or other calamity or
crisis shall have occurred the effect of any of which is such as to make it, in
the sole judgment of the Underwriters, impracticable or inadvisable to market
the Units on the terms and in the manner contemplated by the Prospectus.
8. Substitution of Underwriters. If any one or more of the Underwriters
shall fail or refuse to purchase any of the Firm Units which it or they have
agreed to purchase hereunder, and the aggregate number of Firm Units which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of Firm Units, the other
Underwriters shall be obligated, severally, to purchase the Firm Units which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase, in the proportions which the number of Firm Units which they have
respectively agreed to purchase pursuant to Section 1 bears to the aggregate
number of Firm Units which all such non-defaulting Underwriters have so agreed
to purchase, or in such other proportions as such non-defaulting Underwriters
may specify; provided that in no event shall the maximum number of Firm Units
which any Underwriter has become obligated to purchase pursuant to Section 1 be
increased pursuant to this Section 8 by more than one-ninth of the number of
Firm Units agreed to be purchased by such Underwriter without the prior written
consent of such Underwriter. If any Underwriter or Underwriters shall fail or
refuse to purchase any Firm Units and the aggregate number of Firm Units which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase exceeds one-tenth of the aggregate number of the Firm Units and
arrangements satisfactory to the non-defaulting Underwriters and the Partnership
for the purchase of such Firm Units are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Partnership for the purchase or sale of any
Units under this Agreement. In any such case either the Underwriters or the
Partnership shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken
<PAGE> 23
pursuant to this Section 8 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
9. Miscellaneous. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (a) if to the Partnership or the Intermediate Partnership,
at the office of Northern Border Partners, L.P., Enron Building, 1400 Smith
Street, Houston, Texas 77002 Attention: A.H. Davis, with a copy to Northern
Plains at the office of Northern Plains Natural Gas Company, 1111 South 103rd
Street, Omaha, Nebraska 68124 Attention: Jerry L. Peters, or (b) if to the
Underwriters, at the offices of PaineWebber Incorporated, 1285 Avenue of the
Americas, New York, New York 10019, Attention: Integrated Energy and Power
Group. Any such notice shall be effective only upon receipt. Any notice under
Section 7 or 8 hereof may be made by telex or telephone, but if so made shall be
subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Partnership, the Intermediate Partnership and of the
controlling persons, directors and officers referred to in Section 6 and their
respective successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. The term "successors and assigns" as
used in this Agreement shall not include a purchaser, as such purchaser, of
Units from any of the several Underwriters.
All representations, warranties and agreements of the Partnership and
the Intermediate Partnership contained herein or in certificates or other
instruments delivered pursuant hereto, shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of any
Underwriter or any of its controlling persons and shall survive delivery of and
payment for the Units hereunder.
Any action required or permitted to be taken by the Underwriters under
this Agreement may be taken by them jointly or by PaineWebber Incorporated.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Partnership and the Intermediate Partnership each hereby
irrevocably waive any right they may have to a trial by jury in respect of any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
<PAGE> 24
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the
Partnership, the Intermediate Partnership and the Underwriters.
Each of the undersigned Underwriters hereby makes, constitutes and
appoints PaineWebber Incorporated as its true and lawful attorney-in-fact, with
full power and authority, in the name of such Underwriter, to execute and
deliver the Price Determination Agreement contemplated by this Agreement.
Please confirm that the foregoing correctly sets forth the agreement
among the Partnership, the Intermediate Partnership and the Underwriters.
Very truly yours,
NORTHERN BORDER PARTNERS, L.P.
By: /s/ William R. Cordes
--------------------------------------------
Name: William R. Cordes
Title: Chief Executive Officer
NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP
By: /s/ Jerry L. Peters
-------------------------------------------
Name: Jerry L. Peters
Title: Chief Financial and Accounting Officer
<PAGE> 25
Confirmed as of the date first
above mentioned:
PAINEWEBBER INCORPORATED
By: /s/ Michael Jameson
---------------------------------
Name: Michael Jameson
Title: Vice President
SALOMON SMITH BARNEY INC.
By: /s/ Doloros Arton
---------------------------------
Name: Doloros Arton
Title: Director
LEHMAN BROTHERS INC.
By: /s/ Marc H. Blair
---------------------------------
Name: Marc H. Blair
Title: Vice President
<PAGE> 26
SCHEDULE I
UNDERWRITERS
<TABLE>
<CAPTION>
NUMBER OF FIRM
UNITS TO BE
NAME OF UNDERWRITERS PURCHASED
-------------------- ---------
<S> <C>
PaineWebber Incorporated ............................................................... 625,000
Salomon Smith Barney Inc. .............................................................. 625,000
Lehman Brothers Inc. ................................................................... 625,000
-------
Total 1,875,000
=========
</TABLE>
<PAGE> 27
EXHIBIT A
NORTHERN BORDER PARTNERS, L.P.
PRICE DETERMINATION AGREEMENT
November 1, 2000
PAINEWEBBER INCORPORATED
SALOMON SMITH BARNEY INC.
LEHMAN BROTHERS INC.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Dear Sirs:
Reference is made to the Underwriting Agreement, dated November 1, 2000
(the "Underwriting Agreement"), among Northern Border Partners, L.P. (the
"Partnership"), Northern Border Intermediate Limited Partnership (the
"Intermediate Partnership") and PaineWebber Incorporated, Salomon Smith Barney
Inc. and Lehman Brothers Inc. (collectively, the "Underwriters"). The
Underwriting Agreement provides for the purchase by the Underwriters from the
Partnership, subject to the terms and conditions set forth therein, of an
aggregate of 1,875,000 Common Units representing limited partner interests in
the Partnership (the "Firm Units"). This Agreement is the Price Determination
Agreement referred to in the Underwriting Agreement. Capitalized terms used
herein but not defined shall have the meanings assigned to such terms in the
Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned
agree as follows:
The public offering price per Common Unit for the Firm Units shall be
$29.00.
The purchase price per Common Unit for the Firm Units to be paid by the
Underwriters shall be $27.77 representing an amount equal to the public offering
price set forth above, less $1.23 per Common Unit.
Attached as Schedule I to the Underwriting Agreement is a list of the
Underwriters together with the number of Firm Units to be purchased by each such
Underwriter, which shall be a part of this Agreement and the Underwriting
Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
If the foregoing is in accordance with your understanding of the
agreement among the Partnership, the Intermediate Partnership and the
Underwriters, please sign and return to the Partnership a counterpart hereof,
whereupon this instrument along with all counterparts and together
A-1
<PAGE> 28
with the Underwriting Agreement shall be a binding agreement among the
Partnership, the Intermediate Partnership and the Underwriters in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
NORTHERN BORDER PARTNERS, L.P.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
NORTHERN BORDER INTERMEDIATE
LIMITED PARTNERSHIP
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Confirmed as of the date first above written:
PAINEWEBBER INCORPORATED
By: PAINEWEBBER INCORPORATED
Attorney-in-fact for the Underwriters
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
A-2
<PAGE> 29
EXHIBIT B
_________ , 2000
PAINEWEBBER INCORPORATED
SALOMON SMITH BARNEY INC.
LEHMAN BROTHERS INC.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Dear Sirs:
In consideration of the agreement of the several Underwriters to
underwrite a proposed public offering (the "Offering") of approximately
2,000,000 common units representing limited partner interests (the "Common
Units") of Northern Border Partners, L.P., a Delaware limited partnership, as
contemplated by a registration statement with respect to such Common Units filed
with the Securities and Exchange Commission on Form S-3 (Registration No.
333-72323), the undersigned hereby agrees that the undersigned will not, for a
period of 90 days after the commencement on or before December 31, 2000 of the
public offering of such Units, without the prior written consent of PaineWebber
Incorporated, offer to sell, sell, contract to sell, grant any option to sell,
or otherwise dispose of, or require the Partnership to file with the Securities
and Exchange Commission a registration statement under the Securities Act of
1933 to register, any Common Units or securities convertible into or
exchangeable for Common Units or warrants or other rights to acquire Common
Units of which the undersigned is now, or may in the future become, the
beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934). Any capitalized term not defined herein shall have that meaning
set forth in the Underwriting Agreement.
Very truly yours,
By:
---------------------------------
Print Name:
-------------------------
B-1
<PAGE> 30
EXHIBIT C
FORM OF OPINION OF VINSON & ELKINS L.L.P.
November , 2000
PAINEWEBBER INCORPORATED
LEHMAN BROTHERS INC.
SALOMON SMITH BARNEY INC.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
This opinion is provided to you pursuant to Section 5(f) of that
certain Underwriting Agreement, dated November 1, 2000 (the "Underwriting
Agreement"), among Northern Border Partners, L.P., a Delaware limited
partnership (the "Partnership"), Northern Border Intermediate Limited
Partnership, a Delaware limited partnership (the "Intermediate Partnership") and
the Underwriters named in Schedule I thereto. Any capitalized term used in this
opinion and not defined shall have the meaning assigned to such term in the
Underwriting Agreement. This opinion is being provided at the closing
contemplated by the Underwriting Agreement on the Closing Date.
We have acted as counsel to the Partnership and the Intermediate
Partnership in connection with the offer and sale by the Partnership of Common
Units pursuant to the Underwriting Agreement. In connection with the opinions
expressed below, we have examined the following:
(1) executed originals or counterparts of the Underwriting Agreement,
the Agreement of Limited Partnership for each of the Partnership and the
Intermediate Partnership (the "Partnership Agreements") and all material
indentures, mortgages, deeds of trusts, loan agreements and other agreements or
instruments relating to borrowed money to which the Partnership or the
Intermediate Partnership is a party or by which the Partnership or the
Intermediate Partnership or any of the property or assets of the Partnership or
the Intermediate Partnership is subject and which are described in Schedule I
hereto (the "Listed Agreements");
(2) a copy of the Certificate of Limited Partnership of the
Partnership, as filed with the Secretary of State of the State of Delaware;
(3) a copy of the Certificate of Limited Partnership of the
Intermediate Partnership, as filed with the Secretary of State of the State of
Delaware;
(4) copies of letters, certificates or telegrams of recent dates
received by us from public officials as to (i) the qualification or registration
of the Intermediate Partnership as a foreign limited partnership in the States
of Illinois, Iowa, Minnesota, Montana, Nebraska, North Dakota, South
C-1
<PAGE> 31
Dakota and Texas and (ii) the registration of the Partnership as a foreign
limited partnership in the State of Texas;
(5) copies of letters, certificates or telegrams of recent dates
received by us from public officials in the State of Delaware as to the due
formation and valid existence of the Partnership and the Intermediate
Partnership;
(6) the Registration Statement;
(7) evidence satisfactory to us of the effectiveness of the
Registration Statement under the Act;
(8) a certificate from an authorized officer of the Partnership, dated
as of a recent date, identifying the Listed Agreements;
(9) a report from a commercial reporting service relating to filings
under the Uniform Commercial Code with the Secretary of State of Delaware naming
the Partnership or the Intermediate Partnership as debtor; and
(10) such other documents and records as we have deemed necessary or
advisable for purposes of the opinions expressed below.
Based on the foregoing and subject to the qualifications and
limitations set forth below, we are of the opinion that:
(1) 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 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 Prospectus;
(2) 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 our 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;
(3) 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, Minnesota, Montana, Nebraska, North Dakota, South
Dakota and Texas, and to our 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
C-2
<PAGE> 32
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;
(4) The General Partners are the sole general partners of each of the
Partnership and the Intermediate Partnership with a combined general partner
interest in the Partnership of 1.0% and a combined general partner interest in
the Intermediate Partnership of 1.0101% (subject to the provisions of the
Partnership Agreement and the Intermediate Partnership Agreement, respectively);
such general partner interests are duly authorized by the Partnership Agreement
and the Intermediate Partnership Agreement, respectively, are validly issued and
fully paid (to the extent required by the Partnership Agreement and Intermediate
Partnership Agreement) and are owned of record by the General Partners free and
clear of all liens, encumbrances, security interests, 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 us;
(5) 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 nonassessable, 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 us;
(6) Immediately prior to the closing under the Underwriting 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 29,347,313 Common
Units; such limited partner interests and the Firm Units will be the only
limited partner interests of the Partnership that are issued and outstanding
immediately following the closing under the Underwriting Agreement; the Firm
Units are authorized by the Partnership Agreement and are validly issued, fully
paid and nonassessable, except as provided in Section 17-607 of the Delaware
Act;
(7) 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
Prospectus;
(8) Except as described in the Prospectus and except for (i) rights
granted pursuant to the Exchange Agreement dated May 31, 1997 among the
Intermediate Partnership, the Partnership and
C-3
<PAGE> 33
the stockholders of Williams Technologies, Inc. and (ii) rights granted pursuant
to the Exchange Agreement dated December 29, 1997 between the Partnership and
Pacific Resource 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 our
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 Prospectus and except for restrictions on transfer of securities issued
by the Partnership in reliance on Section 4(2) of the Act, there are no
restrictions upon the voting or transfer of any limited partner interests of the
Partnership or the Intermediate Partnership pursuant to the Partnership
Agreements or, to our knowledge, pursuant to any other agreement or instrument
to which the Partnership or the Intermediate Partnership is a party.
(9) The Registration Statement was declared effective under the Act on
March 3, 1999; the Prospectus Supplement was filed with the Commission pursuant
to subparagraph (2) of Rule 424(b) of the Rules and Regulations on November 2,
2000; and no stop order suspending the effectiveness of the Registration
Statement has been issued and, to our knowledge, no proceeding for that purpose
is pending or threatened by the Commission;
(10) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Partnership prior to the Closing
Date (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 and the Rules and Regulations;
(11) To our knowledge, there are no contracts or other documents that
are required to be summarized or described in the Prospectus or filed as
exhibits to the Registration Statement by the Act or by the Rules and
Regulations that have not been summarized, described or incorporated by
reference in the Prospectus or filed as exhibits to the Registration Statement;
(12) The statements contained in the Prospectus under the captions "Tax
Considerations" and "Recent Tax Developments," insofar as they describe federal
statutes, rules and regulations, constitute a fair summary thereof that is
accurate in all material respects; our opinions filed as Exhibit 8 to the
Registration Statement and as Exhibit 8 to the Partnership's Form 8-K filed on
November 2, 2000, are confirmed, and you may rely upon such opinions as if each
of them were addressed to you;
(13) The Underwriting 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,
C-4
<PAGE> 34
(B) the enforceability of each such agreement may be limited by public policy,
applicable law relating to fiduciary duties and the judicial imposition of an
implied covenant of good faith and fair dealing, (C) the enforceability of
equitable rights and remedies provided for in each such agreement is subject to
equitable defenses and judicial discretion, and (D) the enforceability of
certain other provisions of each such agreement may be limited by applicable
laws and court decisions, none of which should materially and adversely
interfere with the practical realization of the material benefits intended to be
provided by such agreements;
(14) The compliance by each of the Partnership and the Intermediate
Partnership with all of the provisions of the Underwriting Agreement will not,
with the passage of time or upon stated contingency or otherwise, (i) 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 Listed Agreements or either of the
Partnership Agreements, or (ii) result in any breach or violation of the
provisions of the certificate of limited partnership of the Partnership or the
Intermediate Partnership or of or 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 Prospectus) of the
Partnership and the Intermediate Partnership considered as a whole;
(15) Except as described in the Prospectus or as provided in the
Partnership Agreement of the Partnership, to our 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;
(16) 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;
(17) 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;
(18) 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 the
Underwriting Agreement and the Prospectus, except (i) such consents, approvals,
authorizations, orders, registrations or qualifications (a) as have been
obtained, (b) as may be required under the Act or state
C-5
<PAGE> 35
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 Prospectus;
(19) The Common Units outstanding immediately prior to the closing
under the Underwriting Agreement are listed on the New York Stock Exchange, and
the Units issued pursuant to the Underwriting Agreement have been approved for
listing on the New York Stock Exchange, subject to notice of issuance; and
(20) 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 Prospectus.
The opinions expressed herein are qualified in the following respects:
(1) We have relied, without independent investigation or verification,
in respect of factual matters upon certificates of officers of the Partnership,
the Intermediate Partnership and the General Partners and upon information
obtained from public officials (copies of which have been furnished to you and
your counsel) and other sources believed by us to be responsible.
(2) We have assumed, without independent verification, that the
certificates for the Common Units conform to the specimens thereof examined by
us and have been duly countersigned by a transfer agent and duly registered by a
registrar of the Common Units.
(3) We express no opinion with respect to state or local taxes or tax
statutes to which any of the Partnership, the limited partners of the
Partnership, the Intermediate Partnership or the General Partners may be
subject.
(4) For purposes of the foregoing opinions, we have conducted such
investigation as in our judgment is necessary to enable us to render the
foregoing opinions. References herein to our knowledge shall mean the actual
knowledge, after due inquiry or investigation (except that with respect to the
opinion in paragraph 9 we have not conducted any search of the records of any
court), of our attorneys substantially participating in the work of this firm as
counsel with respect to the matters relating to the transactions contemplated by
the Underwriting Agreement or the Prospectus and without in any manner having
conducted any investigation other than as described herein.
(5) We have assumed that (a) each document submitted to us for review
is accurate and complete, each such document that is an original is authentic,
each such document that is a copy conforms to an authentic original and all
signatures on each such document are genuine, (b) each certificate from
governmental officials reviewed by us is accurate, complete and authentic, and
all official public records are accurate and complete, and (c) no party to the
Underwriting Agreement will in the future take any discretionary action
(including a decision not to act) permitted under the Underwriting Agreement
that would result in a violation of law.
(6) This opinion is limited in all respects to federal laws (other than
laws or regulations of the Federal Energy Regulatory Commission ("FERC") or the
Interstate Commerce Commission, as to which we do not opine, except to the
extent that the laws and regulations of the FERC are
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within the scope of paragraphs 14 and 18 above), the Delaware Act, the Delaware
General Corporation Law and the laws of the States of New York and Texas
(excluding rules, regulations and ordinances of counties, towns, municipalities
and other special political subdivisions of the States of New York and Texas).
Since we have not conducted any independent investigation with regard
to the information set forth in the Registration Statement or Prospectus (except
with respect to the opinions set forth herein), we are not (except as
aforesaid), passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained therein. We have
participated, however, in conferences with officers and other representatives of
the Partnership, the Intermediate Partnership, and Northern Border Pipeline and
your representatives of the independent public accountants of the Partnership
and the General Partners and your representatives, at which the contents of the
Registration Statement and Prospectus and related matters were discussed. On the
basis of the foregoing, we advise you that no facts have come to our attention
that have led us to believe that the Registration Statement, at the time such
Registration Statement or any amendment thereto became effective prior to the
date hereof, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that, as of its date, the Prospectus or
any further amendment or supplement thereto made prior to the date hereof
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, or that,
as of the date hereof, either the Registration Statement or the Prospectus or
any further amendment or supplement thereto made prior to the date hereof,
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. We express no 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
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 any Underwriter through you expressly for use therein.
This opinion is furnished to the Underwriters and is solely for the
benefit of the several Underwriters in connection with the transactions
contemplated by the Underwriting Agreement and may not be relied upon in
connection with any other transaction or by any other person or entity or
furnished to anyone else without the prior written consent of the undersigned.
Very truly yours,
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SCHEDULE I
LISTED AGREEMENTS
Indenture, dated as of June 2, 2000, among the Partnership, the Intermediate
Partnership and Bank One Trust Company, N.A. and instruments executed by the
Partnership or the Intermediate Partnership in connection therewith.
First Supplemental Indenture, dated as of September 14, 2000, among the
Partnership, the Intermediate Partnership and Bank One Trust Company, N.A. and
instruments executed by the Partnership or the Intermediate Partnership in
connection therewith.
364-Day Credit Agreement dated as of June 28, 2000 among the Partnership, Bank
Of America, N.A., Administrative Agent, SunTrust Bank, Syndication Agent, Bank
One, NA, Documentation Agent, Banc of America Securities LLC, Lead Arranger and
Lenders (as defined therein) and instruments executed by the Partnership or the
Intermediate Partnership in connection therewith.
First Amendment to 364-Day Credit Agreement effective as of June 28, 2000 among
the Partnership, the Intermediate Partnership, Bank of America, N.A.,
Administrative Agent, and the Lenders (as defined therein) and instruments
executed by the Partnership or the Intermediate Partnership in connection
therewith..
Revolving Credit Agreement dated as of June 28, 2000 among the Partnership, Bank
Of America, N.A., Administrative Agent, SunTrust Bank, Syndication Agent, Bank
One, NA, Documentation Agent, Banc of America Securities LLC, Lead Arranger and
Lenders (as defined therein) and instruments executed by the Partnership or the
Intermediate Partnership in connection therewith.
First Amendment to Revolving Credit Agreement effective as of June 28, 2000
among the Partnership, the Intermediate Partnership, Bank of America, N.A.,
Administrative Agent, and the Lenders (as defined therein) and instruments
executed by the Partnership or the Intermediate Partnership in connection
therewith.
Lost Creek Construction Loan Sponsor Guarantee dated September 21, 2000.
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EXHIBIT D
FORM OF OPINION OF GENERAL COUNSEL OF NORTHERN PLAINS
November 7, 2000
PAINEWEBBER INCORPORATED
SALOMON SMITH BARNEY INC.
LEHMAN BROTHERS INC.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
This opinion is provided to you pursuant to Section 5(g) of that
certain Underwriting Agreement, November 1, 2000 (the "Underwriting Agreement"),
among Northern Border Partners, L.P., a Delaware limited partnership (the
"Partnership"), Northern Border Intermediate Limited Partnership, a Delaware
limited partnership (the "Intermediate Partnership"), and the Underwriters named
in Schedule I thereto. Any capitalized term used in this opinion and not defined
herein shall have the meaning assigned to such term in the Underwriting
Agreement. This opinion is being provided for the closing contemplated by the
Underwriting Agreement at the Closing Date.
I am Vice President and General Counsel of Northern Plains Natural Gas
Company, which is a General Partner and serves as the operator for Northern
Border Pipeline Company. In connection with the opinions expressed below, I have
examined such documents and records as I have deemed necessary or advisable for
purposes thereof.
Based on the foregoing and subject to the qualifications and
limitations set forth below, I am of the opinion that:
(i) Other than as set forth in the Prospectus, to my knowledge there
are no legal or governmental proceedings pending to which the Partnership, the
Intermediate Partnership or Northern Border Pipeline 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 my knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(ii) Except as described in the Prospectus, to my knowledge each of the
Partnership, the Intermediate Partnership and Northern Border Pipeline
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 Prospectus, except for such
certificates,
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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, the Intermediate Partnership or Northern
Border Pipeline to conduct its businesses in all material respects as currently
conducted as described in the Prospectus; to my knowledge each of the
Partnership, the Intermediate Partnership and Northern Border Pipeline 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 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 Prospectus, none of the Partnership, the Intermediate
Partnership or Northern Border Pipeline 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, the Intermediate Partnership and
Northern Border Pipeline and the operation of their respective businesses and
that are required to be described in the Prospectus are as described in the
Prospectus.
(iii) Each of the Partnership, the Intermediate Partnership and
Northern Border Pipeline (1) is in compliance with any and all applicable
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 defined in the Underwriting
Agreement) ("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.
(iv) None of the Partnership, the Intermediate Partnership or Northern
Border Pipeline is: (i) in violation of its 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 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.
(v) Since the date as of which information is given in the Prospectus
Supplement through the date hereof, and except as may otherwise be disclosed in
the Prospectus, the Partnership has not (i) issued or granted any partner
interests, (ii) incurred any material liability
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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.
(vi) Northern Border Pipeline has good and indefeasible title to all
real and personal property necessary to own and operate its pipeline system in
all material respects as described in the Prospectus, free and clear of all
liens, claims, encumbrances and defects except (1) as described in the
Prospectus and (2) such as do not materially interfere with the ownership,
operation or benefits of ownership of the pipeline system or materially increase
the cost of operation or ownership of the pipeline system, provided that, (a)
with respect to the pipeline properties and right-of-way interests related
thereto, the foregoing shall only constitute a statement that, to my knowledge
except as described in the Prospectus (i) Northern Border Pipeline has
sufficient title to enable it to use its pipeline properties in its business as
they have been used in the past and as are proposed to be used in the future as
described in the Prospectus and (ii) any lack of title has not had and will not
have a Material Adverse Effect, and (b) with respect to any real property,
buildings and equipment held under lease by Northern Border Pipeline, such real
property, buildings and equipment are held by Northern Border Pipeline under
valid, subsisting and enforceable leases with such exceptions as will not have a
Material Adverse Effect.
(vii) Each of Northern Border Pipeline and Crestone was duly formed and
is validly existing and in good standing under the laws of its jurisdiction of
formation and has partnership or limited liability company 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 Prospectus. Each
of Northern Border Pipeline and Crestone 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 Prospectus or as provided in
any agreement listed on Schedule I hereto (the "Listed Agreements"). 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 provided in any Listed
Agreement).
The opinions expressed herein are qualified in the following respects:
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(1) References herein to my knowledge shall mean my actual knowledge
and the actual knowledge of Northern Plains' in-house attorneys substantially
participating in the provision of services to Northern Border Pipeline under its
operating agreement with Northern Plains.
(2) This opinion is limited in all respects to federal laws and the
laws of the State of Nebraska (excluding rules, regulations and ordinances of
counties, towns, municipalities and other special political subdivisions of the
State of Nebraska).
Since I have not conducted any independent investigation with regard to
the information set forth in the Registration Statement or Prospectus (except
with respect to the opinions set forth herein), I am not (except as aforesaid),
passing upon and do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained therein. In addition to the foregoing
opinions, however, I hereby advise you that during the course of my
representation of Northern Plains no facts have come to my attention that have
led me to believe that the Registration Statement, at the time such Registration
Statement or any amendments thereto became effective prior to the date hereof,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that, as of its date, the Prospectus or any further amendment
or supplement thereto made prior to the date hereof 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, or that, as of the
date hereof, either the Registration Statement or the Prospectus or any further
amendment or supplement thereto made prior to the date hereof, contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. I express no 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 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 you expressly for use therein.
This opinion is furnished to the Underwriters and is solely for the
benefit of the several Underwriters in connection with the transactions
contemplated by the Underwriting Agreement and may not be relied upon in
connection with any other transaction or by any other person or entity or
furnished to anyone else without the prior written consent of the undersigned.
Very truly yours,
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SCHEDULE I
LISTED AGREEMENTS
Indenture, dated as of June 2, 2000, among the Partnership, the Intermediate
Partnership and Bank One Trust Company, N.A. and instruments executed by the
Partnership or the Intermediate Partnership in connection therewith.
First Supplemental Indenture, dated as of September 14, 2000, among the
Partnership, the Intermediate Partnership and Bank One Trust Company, N.A. and
instruments executed by the Partnership or the Intermediate Partnership in
connection therewith.
364-Day Credit Agreement dated as of June 28, 2000 among the Partnership, Bank
Of America, N.A., Administrative Agent, SunTrust Bank, Syndication Agent, Bank
One, NA, Documentation Agent, Banc of America Securities LLC, Lead Arranger and
Lenders (as defined therein) and instruments executed by the Partnership or the
Intermediate Partnership in connection therewith.
First Amendment to 364-Day Credit Agreement effective as of June 28, 2000 among
the Partnership, the Intermediate Partnership, Bank of America, N.A.,
Administrative Agent, and the Lenders (as defined therein) and instruments
executed by the Partnership or the Intermediate Partnership in connection
therewith..
Revolving Credit Agreement dated as of June 28, 2000 among the Partnership, Bank
Of America, N.A., Administrative Agent, SunTrust Bank, Syndication Agent, Bank
One, NA, Documentation Agent, Banc of America Securities LLC, Lead Arranger and
Lenders (as defined therein) and instruments executed by the Partnership or the
Intermediate Partnership in connection therewith.
First Amendment to Revolving Credit Agreement effective as of June 28, 2000
among the Partnership, the Intermediate Partnership, Bank of America, N.A.,
Administrative Agent, and the Lenders (as defined therein) and instruments
executed by the Partnership or the Intermediate Partnership in connection
therewith.
Lost Creek Construction Loan Sponsor Guarantee dated September 21, 2000.
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